IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DARRICK U. HALL, )

 ) Civil Action

Petitioner ) No. 05-cv-02523

 )

vs. )

 ) 

JEFFREY BEARD, Commissioner, )

Pennsylvania Department of )

Corrections; )

DAVID DiGUGLIELMO, Superintendent )

of the State Correctional )

Institution at Graterford; and )

FRANKLIN J. TENNIS, Superintendent )

of the State Correctional )

Institution at Rockview, )

 )

Respondents )

* * *

APPEARANCES:

CRISTI CHARPENTIER, ESQUIRE and

JAMES J. MCHUGH, ESQUIRE

On behalf of Petitioner

CHRISTOPHER D. CARUSONE, ESQUIRE and

GERALD P. MORANO, ESQUIRE

On behalf of Respondents

* * *

O P I N I O N

JAMES KNOLL GARDNER,

United States District Judge

Case 2:05-cv-02523-JKG Document 31 Filed 10/22/14 Page 1 of 180
TABLE OF CONTENTS Page

SUMMARY OF DECISION.............................................5

PROCEDURAL HISTORY..............................................7

CONTENTIONS OF THE PARTIES.....................................13

Petitioner’s Contentions..................................13

Respondents’ Contentions..................................14

STANDARD OF REVIEW.............................................16

FACTS..........................................................17

DISCUSSION.....................................................19

Exhaustion of State Court Remedies........................19

Procedural Default and the Relaxed Waiver Rule............21

Cause and Prejudice.......................................27

Sentencing Phase Claims...................................31

Trial Counsel’s Failure to Present Mitigation 

 Evidence.............................................31

Pennsylvania Court Decisions....................33

Legal Standard for Ineffective 

 Assistance of Counsel...........................36

Strickland Standard........................37

Duty to Investigate Mitigating 

Evidence...................................39

American Bar Association Guidelines........45

Mitigation Evidence Presented at Penalty

 Phase...........................................48

Mitigation Evidence Available at Time of 

 Penalty Phase...................................50

Trial Counsel’s Deficient Performance...........63

Prejudice.......................................85

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Simmons Instruction..................................91

Catch-All Mitigating Factor Instruction..............92

Grave Risk Aggravating Factor........................97

Trial Court Error...............................98

Ineffective Assistance of Counsel..............102

Proportionality Review..............................106

Victim Impact Testimony.............................111

PCRA Appeal....................................113

Guilt Phase Claims.............................115

Sentencing Phase Claims........................115

Guilt Phase Claims.......................................120

Prosecutorial Misconduct............................120

Exhaustion.....................................123

Fifth Amendment Right Against Self- 

 Incrimination..................................129

Prejudicial and Inflammatory Statements in 

 Violation of Due Process.......................131

Failure to Present Exculpatory Statement of 

 Co-Defendant........................................135

Failure to Move In Limine to Redact Petitioner’s 

 Confession..........................................141

Sufficiency of the Evidence.........................147

Exhaustion.....................................148

Supreme Court of Pennsylvania Decision.........150

Merits Analysis................................153

Suppression of Post-Arrest Statements...............156

Waiver of Miranda Rights.......................157

Trial Court Findings of Fact..............158

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Direct Appeal.............................161

Exhaustion................................163

Merits Analysis...........................165

Ineffective Assistance of Counsel..............171

Direct Appeal.............................172

Merits Analysis...........................173

Cumulative Effect of All Errors..........................177

CONCLUSION....................................................179

This matter is before the court on the Petition for

Writ of Habeas Corpus filed by petitioner Darrick U. Hall on

February 17, 2006. Respondents are Jeffrey Beard, Commissioner

of the Pennsylvania Department of Corrections; David Diguglielmo,

Superintendent of the State Correctional Institution at

Graterford, Pennsylvania; and Franklin J. Tennis, Superintendent

of the State Correctional Institution at Rockview, Pennsylvania.

Respondents filed an answer on May 30, 2006.1

Petitioner filed a memorandum of law on October 6, 2006.2

Respondents filed a memorandum of law on December 6, 2006.3

Respondents’ answer was titled Answer to Petition for Writ of

1

Habeas Corpus.

Petitioner’s memorandum of law was titled Petitioner’s Memorandum

2

of Law in Support of Petition for a Writ of Habeas Corpus.

Respondents’ memorandum of law was titled Memorandum [of] Law in

3

Support of the Commonwealth’s Answer to Petition for Writ of Habeas Corpus.

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Finally, petitioner filed a reply brief on January 8, 2007.4

Oral argument was conducted on the petition on May 17, 2007.

SUMMARY OF DECISION

For the following reasons, I conclude that petitioner

is entitled to relief from his death sentence because trial

counsel was ineffective in failing to investigate and present

significant mitigating evidence at the penalty phase of

petitioner’s trial. I further conclude that petitioner is not

entitled to relief from his conviction.

Specifically, petitioner is entitled to a new

sentencing hearing based upon claim one because trial counsel’s 5

investigation and presentation of mitigating evidence at the

penalty phase of petitioner’s trial fell below an objective

standard of reasonableness, and because petitioner suffered

prejudice as a result of trial counsel’s deficient performance.

Petitioner’s remaining claims are not meritorious. 

Specifically, in claim three, I conclude that the trial court’s

instruction on preponderance of the evidence given at the penalty

phase hearing was not constitutionally deficient. 

Regarding claim four, the testimony of the

Commonwealth’s expert witness regarding bullet ricochet was not

speculative, and its admission did not violate petitioner’s

Petitioner’s reply was titled Petitioner’s Reply to Commonwealth’s

4

Memorandum of Law in Support of Commonwealth’s Answer to Petition for a Writ

of Habeas Corpus.

See Section titled Petitioner’s Contentions, below, for an

5

enumeration of petitioner’s thirteen claims.

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constitutional rights. Further, trial defense counsel’s decision

not to call a ballistics expert to rebut the Commonwealth’s

expert witness was a reasonable strategy and did not constitute

ineffective assistance of counsel.

With respect to claim five, the prosecutor’s statements

during closing argument at the guilt phase of trial did not

constitute prosecutorial misconduct which deprived petitioner of

due process. 

In claim six, the admission of the alleged victim

impact statements did not deprive petitioner of fundamental

fairness in his trial. Furthermore, trial defense counsel was

not ineffective in failing to move to exclude these statements

because the reliability of the proceedings was not undermined by

the admission of the statements. 

Regarding claim eight, petitioner’s constitutional

rights were not violated by the failure to admit a co-defendant’s

statement because the statement was not necessarily exculpatory,

and petitioner was not prejudiced by trial counsel’s failure to

move to admit the statement.

With respect to claim nine, trial counsel was not

ineffective because there is no reasonable probability that the

result of the proceedings would have been different had

defendant’s confession been redacted to exclude the phrase “white

guy” in reference to the victim. 

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In claim ten, petitioner’s due process rights were not

violated because the evidence was sufficient to sustain a

conviction for Murder of the first degree.

Regarding claim eleven, petitioner’s Fifth Amendment

rights were not violated by the trial court’s failure to suppress

petitioner’s confession. In addition, trial defense counsel was

not ineffective for failing to present additional witnesses at

the suppression hearing because petitioner was not prejudiced by

this decision.

Finally, petitioner’s remaining claims two, seven,

twelve, and thirteen are procedurally defaulted. Petitioner’s

claims are procedurally defaulted because the state court deemed

claims two and seven waived, and because petitioner failed to

exhaust his state court remedies regarding claims twelve and

thirteen.

PROCEDURAL HISTORY

The Commonwealth of Pennsylvania prosecuted petitioner

Darrick U. Hall for the armed robbery of a Coatesville, Chester

County, Pennsylvania laundromat and the shooting death of victim

Donald Johnson. Petitioner was represented at his trial by

retained counsel Robert E.H. Miller, Esquire. 

On October 27, 1994, following a jury trial in the

Court of Common Pleas of Chester County, Pennsylvania, petitioner

was convicted by a jury of Murder of the first degree,6

18 Pa.C.S.A. § 2502(a).

6

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Recklessly endangering another person, Firearms not to be 7

carried without a license, Robbery, and Criminal conspiracy to 8 9

commit Robbery. Petitioner was acquitted of conspiracy to 10

commit murder. 

11

The penalty phase began the following day and the jury

returned a sentence of death on October 29, 1994. The jury found

the following two aggravating circumstances: (1) petitioner

committed the killing while in the perpetration of a felony;12

and (2) during the commission of the killing, petitioner

knowingly created a grave risk of death to another person in

addition to the victim. 

13

The jury found one mitigating factor pursuant to the

catch-all category of “any other evidence of mitigation

concerning the character and record of the defendant and the

circumstances of his offense.” Specifically, the jury found 14

that the events leading up to the fatal shot included the

possibility of a struggle. Furthermore, the jury determined that

the two aggravating factors outweighed the one mitigating factor.

18 Pa.C.S.A. § 2705.

7

18 Pa.C.S.A. § 6106.

8

18 Pa.C.S.A. § 3701.

9

18 Pa.C.S.A. § 903.

10

Id.

11

42 Pa.C.S.A. § 9711(d)(6).

12

42 Pa.C.S.A. § 9711(d)(7).

13

42 Pa.C.S.A. § 9711(e)(8).

14

-8-

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On November 7, 1994, the trial court imposed the jury’s

death sentence on the charge of Murder of the first degree. With

respect to petitioner’s other convictions, the trial judge

imposed the following sentences: not less than two-and-one-half

years nor more than five years imprisonment, concurrent to the

death sentence, for Firearms not to be carried without a license;

not less than ten years nor more than twenty years imprisonment,

consecutive to the death sentence, for Robbery; and not less than

five years nor more than ten years concurrent to the Robbery

sentence, for Criminal conspiracy to commit Robbery. The trial

judge entered a verdict of guilty without further imposition of

sentence for Recklessly endangering another person.

On November 14, 1994, Vincent P. DiFabio, Esquire was

appointed by the Court of Common Pleas of Chester County to

represent petitioner in his direct appeal to the Supreme Court of

Pennsylvania. He filed a Notice of Appeal on November 28, 1994. 

On February 9, 1995, the trial court filed a Rule 1925(a)

Opinion in response to petitioner’s statement of matters 15

complained of on appeal.

On May 22, 1995 the parties filed a joint motion for

remand for an evidentiary hearing on allegations of ineffective

assistance of counsel. The Supreme Court of Pennsylvania granted

the motion on June 29, 1995, and the trial court conducted a

five-day evidentiary hearing on September 21, October 20, 25, 27

See Pennsylvania Rule of Criminal Procedure 1925(a).

15

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and November 15, 1995. On January 25, 1996 the trial court

issued its findings of fact and credibility determinations. 

On September 17, 1997 the Supreme Court of Pennsylvania

affirmed the judgment of petitioner’s sentence. Commonwealth v.

Hall, 549 Pa. 269, 701 A.2d 190 (1997). 

On January 8, 1998, pursuant to 42 Pa.C.S.A. § 9711(j),

then Pennsylvania Governor Thomas J. Ridge issued a death warrant

for petitioner’s execution. Petitioner, through counsel, Robert

Brett Dunham, Esquire, filed a motion with the Supreme Court of

Pennsylvania for a stay of execution. The Supreme Court of 16

Pennsylvania granted petitioner’s stay of execution on 

January 16, 1998 pending action by the United States Supreme

Court on his petition for certiorari from the court’s ruling in 

Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190 (1997). 

Commonwealth v. Hall, 550 Pa. 190, 704 A.2d 127 (1998). 

On April 20, 1998, the United States Supreme Court

denied certiorari. Hall v. Pennsylvania, 523 U.S. 1082, 

118 S.Ct. 1534, 140 L.Ed.2d 684 (1998). Pursuant to 

42 Pa.C.S.A. § 9711(j), Governor Ridge issued a second death

warrant on May 18, 1998 for petitioner’s execution. 

On May 26, 1998, petitioner filed a timely petition,

pro se, for relief under the Pennsylvania Post Conviction Relief

Act (“PCRA”). Petitioner also filed a motion, through Attorney

It appears that Attorney Dunham, of the Center for Legal

16

Education, Advocacy & Defense Assistance, represented petitioner pro bono in

this matter. As described below, on May 26, 1998 petitioner later requested

the appointment of the Center for Legal Education, Advocacy & Defense

Assistance to represent him, which request was denied.

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Dunham, seeking a stay of execution previously issued by Governor

Ridge and requesting the appointment of the Center for Legal

Education, Advocacy & Defense Assistance to represent him. 

The Commonwealth did not oppose the motion for stay of

execution. However, it did oppose petitioner’s request for

specific counsel. The court granted the motion for stay of

execution and appointed John DiSantis, Esquire from the Chester

County Conflict Counsel panel.

On November 12, 1998 Attorney DiSantis filed an amended

PCRA petition on petitioner’s behalf. Several continuances were

requested by petitioner and were granted, and an evidentiary

hearing was held on July 13, 2000.

On September 15, 2000, Thomas J. Wagner, Esquire, was

appointed from the Chester County Conflict Counsel panel to

represent petitioner in place of Attorney DiSantis who withdrew

his name from the Chester County Conflict Counsel panel.

On October 19, 2000 the trial court denied petitioner’s

claims in his amended PCRA petition. Petitioner appealed that

decision to the Supreme Court of Pennsylvania. In May 2000,

Christi A. Charpentier, Esquire entered her appearance and filed

a brief on behalf of petitioner. The Supreme Court of

Pennsylvania affirmed the trial court’s denial of petitioner’s

amended PCRA petition on April 29, 2005. Commonwealth v. Hall,

582 Pa. 526, 872 A.2d 1177 (2005).

On May 25, 2005, former Pennsylvania Governor Edward G.

Rendell issued a third death warrant for petitioner, scheduling

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his execution for July 19, 2005. Petitioner, through counsel,

filed Petitioner’s Unopposed Motion for Stay of Execution,

Request for Appointment of Counsel and for In Forma Pauperis

Status with this court on May 26, 2005. By Order dated June 7,

2005, I stayed petitioner’s execution pending filing and

adjudication of his federal habeas corpus petition. I further

ordered counsel for petitioner to file a petition for habeas

corpus relief by January 26, 2006.

By Order dated January 19, 2006, I granted petitioner

an extension until February 17, 2006 to file his petition for

federal habeas corpus relief. 

As described above, on February 17, 2006, petitioner

filed a Petition for Writ of Habeas Corpus pursuant to 

28 U.S.C. § 2254. By Order dated March 30, 2006, I directed

respondents to file an answer to petitioner’s habeas corpus

petition by May 30, 2006. Pursuant to that Order, respondents

filed their answer on May 30, 2006.

On October 6, 2006, petitioner filed Petitioner’s

Memorandum of Law in Support of Petition for a Writ of Habeas

Corpus. On December 6, 2006, respondents filed a Memorandum in

Law in Support of the Commonwealth’s Answer to Petition for Writ

of Habeas Corpus. Petitioner filed a reply brief on January 8,

2007.

On May 17, 2007, oral argument in this matter was held

in this court on the federal petition. 

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CONTENTIONS OF THE PARTIES

Petitioner’s Contentions

Petitioner seeks relief from his conviction and death

sentence on multiple grounds. Specifically, petitioner raises

the following thirteen claims:

(1) trial defense counsel was ineffective for failing

to investigate, develop, and present substantial

mitigating evidence; 

(2) trial counsel was precluded from informing the

jury, and the jury was never instructed, that

petitioner would be ineligible for parole if he

were sentenced to life imprisonment; 

(3) the trial court’s instructions regarding the

catch-all mitigating factor prevented the jury

from considering relevant mitigating evidence that

was present in this case, and the trial court’s

definition of the preponderance of evidence

standard was inadequate; 

(4) trial counsel was ineffective, and the trial court

erred, with respect to the existence of the “grave

risk” aggravating factor, and the Commonwealth

failed to provide petitioner with adequate notice

of the “grave risk” factor; 

(5) the prosecutor engaged in numerous acts of

misconduct; 

(6) trial defense counsel was ineffective by not

objecting when allegedly improper victim impact

testimony was presented and argued to the jury; 

(7) the trial court failed to properly instruct the

jury on the nature and use of aggravating and

mitigating factors; 

(8) trial defense counsel was ineffective for failure

to present material and relevant evidence, which

violated petitioner’s right to present a defense; 

(9) trial counsel was ineffective for failing to move

in limine to redact the numerous references to the

victim as “white guy” in petitioner’s statement to

police; 

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(10) the evidence was insufficient to sustain a

conviction of Murder of the first degree;

(11) the trial court improperly admitted incriminating

statements made by petitioner after his arrest and

request for counsel;

(12) the proportionality review conducted by the

Supreme Court of Pennsylvania violated

petitioner’s due process rights; and

(13) the prejudicial effects of all of the cumulative

errors in this case undermine confidence in the

outcome at both the guilt phase and penalty phase

of petitioner’s trial. 

Petitioner argues that the factual basis for the claims

presented in his petition for writ of habeas corpus were properly

presented to the state courts of Pennsylvania. Petitioner

further avers that any state procedural bar precluding this

federal court from reviewing the merits of his claims is not

supported by an adequate and independent state-law ground, or,

alternatively, is available for federal review because cause and

prejudice exists.

Respondents’ Contentions

Respondents contend that petitioner is not entitled to

relief on any of his thirteen claims. Specifically, with respect

to petitioner’s first claim for ineffective assistance of

counsel, respondents aver that trial counsel’s investigation was

not inadequate and that any failure to present information of

petitioner’s abusive childhood and medical and educational

records was the result of petitioner’s failure to inform his

trial counsel of this potentially mitigating evidence. 

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Case 2:05-cv-02523-JKG Document 31 Filed 10/22/14 Page 14 of 180
With respect to petitioner’s sixth claim that his trial

counsel was ineffective for permitting improper victim impact

testimony, respondents argue that statements made by witnesses

did not constitute improper victim impact testimony; rather, the

comments were merely passing references. Regarding petitioner’s

eighth claim that trial counsel was ineffective for failing to

present material and relevant evidence, respondents argue that a

state-law evidentiary issue does not raise a federal

constitutional question and exceeds this federal court’s power

for habeas review. 

Regarding petitioner’s ninth claim that trial counsel

was ineffective for failing to move in limine to redact

petitioner’s statement to the police, respondents argue that

trial counsel was not ineffective because the jury knew the race

of the victim and the trial court conducted voir dire on the

subject of racial prejudice. Additionally, with respect to

petitioner’s twelfth claim regarding the proportionality review

conducted by the Supreme Court of Pennsylvania, respondents

assert that the Supreme Court properly conducted the review and

held that petitioner’s sentence was “not excessive or

disproportionate to the sentence imposed in similar cases.”17

Finally, respondents contend that petitioner’s

remaining claims, namely petitioner’s, second, third, fourth,

fifth, seventh, tenth, eleventh, and thirteenth claims, are

Hall, 549 Pa. at 308, 701 A.2d at 210.

17

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procedurally barred by state law or are not exhausted, and, as a

result, are not subject to federal habeas corpus review.

STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”) imposes certain procedural requirements and 18

standards on federal courts for analyzing federal habeas corpus

petitions. Specifically, the AEDPA limits habeas corpus relief

for claims adjudicated on the merits by a state court. 28 U.S.C.

§§ 2254(d)(1)-(2). 

Under this deferential standard, habeas corpus relief

is barred unless the state court determination was “contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States” or was “based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. §§ 2254(d)(1)-(2). In addition, a state

court’s factual findings are “presumed to be correct,” and the

habeas corpus petitioner “shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 

28 U.S.C. § 2254(e)(1); Bond v. Beard, 539 F.3d 256, 263 

(3d Cir. 2008). 

Furthermore, a state court decision is “contrary to”

United States Supreme Court precedent “if the state court arrives

at a conclusion opposite to that reached by [the Supreme] Court

on a question of law or if the state court decides a case

See 28 U.S.C. §§ 2254(d)(1)-(2) and (e)(1).

18

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differently than this Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413,

120 S.Ct. 1495, 1523, 146 L.Ed.2d 389, 430 (2000). 

A state court decision is an “unreasonable application”

of Supreme Court precedent “if the state court identifies the

correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of

the [habeas corpus petitioner’s] case.” Williams, 

529 U.S. at 413, 120 S.Ct. at 1523, 146 L.Ed.2d at 430. 

The AEDPA’s deferential standards do not apply “unless

it is clear from the face of the state court decision that the

merits of the petitioner’s constitutional claims were examined in

light of federal law as established by the Supreme Court of the

United States.” Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005)

(quoting Everett v. Beard, 290 F.3d 500, 508 (3d Cir. 2002)). In

cases where the AEDPA standard of review is inapplicable, “the

federal habeas court must conduct a de novo review over pure

legal questions and mixed questions of law and fact, as a court

would have done prior to the enactment of AEDPA.” Thomas v.

Horn, 570 F.3d 105, 113 (3d Cir. 2009) (quoting Appel v. Horn,

250 F.3d 203, 210 (3d Cir. 2001)).

FACTS

Following is a summary of the facts underlying

petitioner’s conviction, as set forth by the Supreme Court of

Pennsylvania in Commonwealth v. Hall, 549 Pa. at 280-281, 

701 A.2d at 195-196. 

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On December 18, 1993, Troy Davis, Troy Green and

petitioner Darrick U. Hall drove from Philadelphia, Pennsylvania

to Coatesville, Chester County, Pennsylvania with the intention

of committing a robbery. Upon arriving in Coatesville at

approximately 12:00 o’clock noon, petitioner and his cohorts

decided to rob a laundromat located on Main Street. 

Petitioner, armed with a loaded .357 caliber magnum

revolver, and Mr. Green, armed with a .22 caliber revolver,

entered the laundromat while Mr. Davis remained in the vehicle as

the getaway driver. Once inside, Mr. Green stayed at the front

entrance and petitioner went to the cashier station at the rear

of the laundromat. 

Petitioner withdrew his revolver and demanded money

from the cashier, victim Donald Johnson. The victim refused to

give petitioner any money and petitioner fired a shot at the

victim, grazing his head. Petitioner fired another shot at the

victim from a distance of four to ten inches away, which entered

the victim’s brain and caused his death. 

After shooting the cashier, petitioner backed out of

the laundromat waiving his revolver at approximately ten to

fifteen patrons. He then fled with his cohorts to a nearby house

in Coatesville. Petitioner, Mr. Davis and Mr. Green changed

clothes at the house and joked about their revolvers with the

resident of the house. On their return to Philadelphia, the

three men stopped at a fast-food restaurant and changed their

clothes for a second time.

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Detectives from the Chester County District Attorney’s

Office interviewed three eyewitnesses to the robbery and shooting

between December 19, 1993 and December 24, 1993. On December 23,

1993 petitioner was identified by one eyewitnesses from a

photographic array prepared by a Chester County detective. On

December 24, 1993 a second eyewitness independently identified

petitioner from the same photographic array.

On December 27, 1993 an arrest warrant was issued for

petitioner. Pursuant to this warrant, Philadelphia police

officers arrested petitioner on December 28, 1993 at his mother’s

home in Philadelphia. After being arrested, petitioner waived

his Miranda rights and confessed to his participation in the 19

robbery and shooting. However, petitioner explained that the

shooting was an accident and resulted from a struggle with the

victim. Petitioner’s statement was reduced to a typewritten

document by a Chester County detective, which petitioner

reviewed, corrected and signed.

DISCUSSION 

Exhaustion of State Court Remedies

“It is axiomatic that a federal habeas court may not

grant a petition for a writ of habeas corpus filed by a person

incarcerated from a judgment of a state court unless the

petitioner has first exhausted the remedies available in the

state courts.” Lambert v. Blackwell, 134 F.3d 506, 513 

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

19

(1966).

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Case 2:05-cv-02523-JKG Document 31 Filed 10/22/14 Page 19 of 180
(3d Cir. 1997); see also 28 U.S.C. § 2254(b)(1)(A). The

exhaustion requirement is rooted in principles of comity, and it

affords state courts the first opportunity to adjudicate

constitutional challenges to state convictions. Coleman v.

Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2555, 

115 L.Ed.2d 640, 657 (1991). 

To properly satisfy the exhaustion requirement, the

petitioner must provide the state court with the first opportunity to hear the same claim raised in the federal habeas

petition. Picard v. Connor, 404 U.S. 270, 276, 

92 S.Ct. 509, 512, 30 L.Ed.2d 438, 444 (1971). The petitioner

must invoke “one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 

526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1, 9 (1999). 

Once the issue has been raised on direct appeal, a petitioner is

not required to raise it again in a state post-conviction

proceeding. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

The claim must be “fairly presented” to the state

courts, which means the petitioner must “present a federal

claim’s factual and legal substance to the state courts in a

manner that puts them on notice that a federal claim is being

asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 

(3d Cir. 1999). “It is not enough that all the facts necessary

to support the federal claim were before the state courts....” 

Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 

74 L.Ed.2d 3, 7 (1982). The “mere similarity of claims is

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Case 2:05-cv-02523-JKG Document 31 Filed 10/22/14 Page 20 of 180
insufficient to exhaust.” Keller v. Larkins, 251 F.3d 408, 413-

414 (3d Cir. 2001) (quoting Duncan v. Henry, 513 U.S. 364, 366,

115 S.Ct. 887, 888, 130 L.Ed.2d 865, 868 (1995)). 

However, petitioner is not required to cite “book and

verse” to the federal Constitution in his state-law claim. 

Picard, 404 U.S. at 278, 92 S.Ct. at 513, 30 L.Ed.2d at 445

(internal quotation omitted). The United States Court of Appeals

for the Third Circuit has provided four ways in which petitioners

can fairly present a federal claim to state courts without

explicitly referencing the federal Constitution or federal laws: 

(a) reliance on pertinent federal cases employing

constitutional analysis, (b) reliance on state

cases employing constitutional analysis in like

fact situations, (c) assertion of the claim in

terms so particular as to call to mind a specific

right protected by the Constitution, and 

(d) allegation of a pattern of facts that is well

within the mainstream of constitutional

litigation.

McCandless, 172 F.3d at 261 (internal quotation omitted).

Procedural Default and the Relaxed Waiver Rule

A claim may be deemed exhausted where, although it has

not been fairly presented to state courts, no state corrective

processes are available, or circumstances exist that render such

processes ineffective to protect the rights of the petitioner. 

28 U.S.C. §§ 2254(b)(1)(B)(i) and (ii); Szuchon v. Lehman, 

273 F.3d 299, 323 n.14 (3d Cir. 2001); McCandless, 

172 F.3d at 260. 

However, where a claim has been deemed exhausted

because of petitioner’s failure to comply with a state procedural

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rule, such claims are considered procedurally defaulted. Werts,

228 F.3d at 192 & n.9. A federal habeas court “will not review a

question of federal law decided by a state court if the decision

of [the state] court rests on a state law ground that is

independent of the federal question and adequate to support the

judgment.” Jacobs v. Horn, 395 F.3d 92, 117 (3d Cir. 2005)

(internal quotations omitted); see also Bronshtein v. Horn, 

404 F.3d 700, 707 (3d Cir. 2005).

A state court decision rests on “independent” state

grounds when “resolution of the state procedural law question”

does not depend on a “federal constitutional ruling.” Laird v.

Horn, 159 F.Supp.2d 58, 73 (E.D.Pa. 2001)(Dubois, J.)(internal

quotations omitted), aff’d, 414 F.3d 419 (3d Cir. 2005).

For a state rule to provide an “adequate” basis for

precluding federal review of a state prisoner's habeas claim, the

rule must have been firmly established and regularly followed at

the time the alleged default occurred. Albrecht v. Horn, 

485 F.3d 103, 115 (3d Cir. 2007). This requirement ensures that

petitioner had fair notice of the need to follow the state

procedural rule before barring habeas review. Bronshtein, 

404 F.3d at 707. 

A state procedural rule is considered “adequate” when

it has the following attributes: “(1) the state procedural rule

speaks in unmistakable terms; (2) all state appellate courts

refused to review the petitioner's claims on the merits; and 

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(3) the state courts' refusal in this instance is consistent with

other decisions.” Jacobs, 395 F.3d at 117.

In this case, the Supreme Court of Pennsylvania held

that certain claims raised by petitioner on PCRA appeal were 20

waived for petitioner’s failure to raise them on direct appeal.21

Hall, 582 Pa. at 536 n.5, 872 A.2d at 1183 n.5. Pennsylvania law

requires claims to be raised in post-verdict motions to preserve

them for appellate review. Commonwealth v. Gravely, 

486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979). 

The Supreme Court of Pennsylvania held that the following claims

20

were waived for failure to raise them on direct appeal: (1) appellant’s

constitutional rights were violated by the trial court’s failure to inform the

jury that a life sentence in Pennsylvania means a life sentence without

parole; (2) the prosecutor engaged in numerous acts of misconduct during the

penalty phase; (3) the Commonwealth failed to provide appellant adequate

notice of the grave risk aggravator; (4) the trial court erred in instructing

the jury on the requirements of 42 Pa.C.S.A. § 9711(e)(8) concerning the

catch-all mitigating factor of any other mitigation evidence regarding

petitioner’s character, criminal record and the circumstances of the charged

offenses; and (5) the trial court improperly instructed the jury on the use of

aggravating and mitigating factors.

The Supreme Court of Pennsylvania also held that petitioner had

21

failed to overcome waiver by framing the alleged errors in terms of

ineffective assistance of counsel. Hall, 582 Pa. at 536 n. 5,

872 A.2d at 1183 n.5. The Court held that petitioner’s ineffectiveness claims

were “undeveloped” and were “based upon a boilerplate assertion of all prior

counsel’s ineffectiveness....” Id. In so holding, the Court applied a state

procedural rule whereby the appellant must “meaningfully discuss and apply the

standard governing the review of ineffectiveness claims” before he can be

entitled to any relief. Commonwealth v. Bracey, 568 Pa. 264, 273 n.4,

795 A.2d 935, 940 n.4 (Pa. 2001).

The Court acknowledged that it was not denying petitioner relief

for failure to properly layer a claim of ineffective assistance of counsel on

PCRA review because the applicable standard had not been clearly identified

until recently. Hall, 582 Pa. at 536, 872 A.2d at 1183 n.5. The Court

instead appears to deny relief to petitioner’s ineffective assistance claims

because petitioner failed to meaningfully discuss and apply Pennsylvania’s

well-established three-prong test for ineffectiveness identified in

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (Pa. 1987). Hall,

582 Pa. at 536 n.5, 872 A.2d at 1183 n.5. Accordingly, petitioner’s failure

to comply with the state procedural rule for pleading is an independent and

adequate state-law ground barring relief, and petitioner’s claims are

procedurally defaulted.

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Respondents contend that the Supreme Court of

Pennsylvania’s waiver renders many of petitioner’s claims for

habeas relief procedurally defaulted.

Petitioner argues that the procedural default is not

supported by adequate state-law grounds because the waiver rule

had not been firmly established and regularly followed at the

time petitioner took his direct appeal. 

22

For capital cases, the Supreme Court of Pennsylvania

established the practice of applying a relaxed waiver rule

because of the “final and irrevocable nature of the death

penalty.” Commonwealth v. Zettlemoyer, 500 Pa. 16, 50 n.19, 

454 A.2d 937, 955 n.19 (1982). Accordingly, the Supreme Court of

Pennsylvania would not adhere strictly to the normal rules of

waiver and would consider the merits of claims otherwise waived

for failure to properly preserve for appellate review. Id.; see

also Szuchon, 273 F.3d at 325-326. In fact, during petitioner’s

direct appeal, the Supreme Court of Pennsylvania applied the

relaxed waiver rule to claims petitioner had failed to raise in

post-verdict motions. Hall, 549 Pa. at 294 n.14, 302 n.17, 

701 A.2d at 202 n.14, 207 n.17. 

Petitioner was not fairly on notice that the ordinary

waiver rule would apply to his capital case on direct appeal

because the Pennsylvania courts did not have a firmly established

Petitioner appears to concede that the doctrine of waiver

22

constitutes an “independent” state-law ground for procedural default purposes.

See Petitioner’s Memorandum of Law in Support of Petition for a Writ of Habeas

Corpus (“Petitioner’s Memorandum”), filed October 6, 2006, pages 2-4.

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and regularly followed rule enforcing waiver. Therefore, as the

United States Court of Appeals for the Third Circuit has held,

the holding that a claim has been waived for petitioner’s failure

to raise it on direct appeal in a capital case is not “adequate”

to support the judgment for purposes of procedural default. 

Szuchon, 273 F.3d at 327. 

However, Pennsylvania law regarding the application of

the relaxed waiver rule on post-conviction review changed prior

to the conclusion of petitioner’s PCRA proceedings. 

On November 23, 1998 the Supreme Court of Pennsylvania

held that the relaxed waiver rule would no longer apply to

capital cases at the post-conviction appellate stage. 

Commonwealth v. Albrecht, 554 Pa. 31, 44, 720 A.2d 693, 700 

(1998). The Court held that “the negligible benefits of relaxed

waiver at the PCRA appellate stage are more than outweighed by

the need for finality and efficient use of the resources of this

court.” 554 Pa. at 45, 720 A.2d at 700.

Following Albrecht, the Supreme Court of Pennsylvania

“deems an issue waived where the petitioner failed to present it

to the PCRA court.” Jacobs, 395 F.3d at 117. Therefore, because

the Supreme Court of Pennsylvania no longer applies the relaxed

waiver rule to capital cases, a petitioner cannot raise a claim

for the first time on a PCRA appeal. Albrecht, 554 Pa. at 45, 

720 A.2d at 700. Accordingly, after Albrecht the waiver rule

would be considered an “adequate” state-law ground for procedural

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default purposes on habeas review because a petitioner would have

fair notice of its application in capital cases. 

23

In this case, petitioner had three opportunities

following the Supreme Court of Pennsylvania’s decision in

Albrecht to present his claims to the PCRA court. While

petitioner filed his pro se PCRA petition and his amended PCRA

petition before Albrecht had been decided, the PCRA court held a

hearing on April 22, 1999, provided the petitioner with an

opportunity to supplement his petition within forty-five days

after the hearing, and, as stated above, the PCRA hearing was

held on July 13, 2000. The petitioner had multiple post-Albrecht

opportunities to amend his PCRA petition and to present

supplemental claims to the PCRA court. The PCRA court denied

petitioner’s claims on October 19, 2000. 

In Wilson v. Beard, 589 F.3d 651, 658 (3d Cir. 2009),

the Commonwealth argued that the petitioner’s claim was

procedurally defaulted based on the Supreme Court of

Pennsylvania’s holding that petitioner failed to raise the claim

in his PCRA petition and failed to seek leave to amend his PCRA

petition to add the claim. The Third Circuit held that the

waiver rule was not adequate for procedural default purposes

because the PCRA proceedings occurred before Albrecht, and the

PCRA court denied the petition months before Albrecht had been

The Third Circuit has not explicitly held when the waiver rule, as

23

applied in capital cases on PCRA review, specifically became firmly

established and regularly followed. Instead, the Third Circuit has only had

occasion to hold that the procedural rule could not have been firmly

established and regularly followed before Albrecht. See, e.g., Bronshtein,

404 F.3d at 709.

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decided as well. Id. at 656, 658; see also Jacobs, 

395 F.3d at 116-119.

Here, the Supreme Court of Pennsylvania abandoned the

relaxed waiver rule in capital cases before petitioner’s PCRA

proceedings were conducted, and Albrecht had been decided almost

two-years before petitioner’s PCRA petition was denied. 

Therefore, applying the waiver rule to petitioner’s claims not

raised on PCRA review constitutes an “adequate” state-law ground. 

Accordingly, any of petitioner’s claims not raised on PCRA

review, but raised for the first time to the Supreme Court of

Pennsylvania on PCRA appeal, which were held to be waived, are

procedurally defaulted and are not subject to federal habeas

review.

Cause and Prejudice

Petitioner argues that if his claims are procedurally

defaulted, this court may consider them because he can establish

cause and prejudice for the default. Specifically, petitioner

claims that he was denied effective assistance of counsel because

his PCRA counsel failed to present meritorious claims for relief

to the PCRA court.

A federal court may still consider the merits of

petitioner’s procedurally defaulted claim if a petitioner can

establish cause and prejudice for his failure to comply with the

state procedural rule, or that a fundamental miscarriage of

justice would result, requiring excusal of the procedural

default. Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002).

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A fundamental miscarriage of justice can be established

only in extraordinary cases, and “petitioner must prove that it

is more likely than not that no reasonable juror would have

convicted him.” Werts, 228 F.3d at 193.

“Cause” for procedural default can be established where

some objective factor external to the defense impeded counsel’s

efforts to comply with the state procedural rule. Id. The

United States Supreme Court has held that ineffective assistance

of counsel pursuant to the Sixth Amendment can constitute cause

for procedural default. Murray v. Carrier, 477 U.S. 478, 488,

106 S.Ct. 2639, 2645, 91 L.Ed.2d 397, 409 (1986).

A petitioner can establish the “prejudice” requirement

by showing that the alleged error “worked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.” Werts, 228 F.3d at 193 (internal

quotations omitted). Where ineffective assistance of counsel is

the alleged “cause,” prejudice occurs “where there is a

reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been

different.” Werts, 228 F.3d at 193 (internal quotations

omitted). 

Petitioner alleges, without citing any authority, that

even though he has no Sixth Amendment right to PCRA counsel, he

can still establish “cause” by alleging ineffective assistance of

PCRA counsel “so long as the basis for the cause is presented at

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the first opportunity upon removal of the impediment.”24

Petitioner alleges that PCRA counsel, direct appeal counsel, and

trial counsel were all ineffective. Petitioner contends that

because he presented his claims of counsel ineffectiveness to the

Supreme Court of Pennsylvania on PCRA appeal, he properly

established cause for procedural default because this was the

first opportunity he had to raise his claims of all prior

counsels’ ineffectiveness.

The United States Supreme Court has held that there is

no constitutional right to an attorney in state post-conviction

proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 

111 S.Ct. 2546, 2566, 115 L.Ed.2d 640, 671 (1991). Consequently,

a petitioner cannot make a Sixth Amendment claim for ineffective

assistance of post-conviction counsel. Id. Only a claim for

constitutionally ineffective assistance of counsel will establish

“cause” for procedural default. Coleman, 501 U.S. at 753-754,

111 S.Ct. at 2566-2567, 115 L.Ed.2d at 671-672. 

In Coleman, the United States Supreme Court explained

that procedural default resulting from constitutionally

ineffective assistance of counsel is an external factor that is

imputed to the state because of the state’s responsibility to

provide competent counsel pursuant to the Sixth Amendment. Id. 

However, “[i]n the absence of a constitutional violation, the

petitioner bears the risk in federal habeas for all attorney

Petitioner’s Reply to Commonwealth’s Memorandum of Law in Support

24

of Commonwealth’s Answer to Petitioner for a Writ of Habeas Corpus, filed

January 8, 2007, page 5.

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errors made in the course of the representation....” 

501 U.S. at 754, 111 S.Ct. at 2567, 115 L.Ed.2d at 672.

However, after briefing was closed and oral argument

was conducted, the United States Supreme Court created a narrow

exception to the rule set forth in Coleman. 

In Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 

182 L.Ed.2d 272 (2012) the Supreme Court held that a prisoner may

establish cause for the procedural default of an ineffectiveassistance-of-trial-counsel claim by demonstrating the

ineffectiveness of counsel in an “initial-review collateral

proceeding”. The Supreme Court defined “initial-review

collateral proceeding” as a collateral proceeding that

“provide[s] the first occasion to raise a claim of ineffective

assistance at trial.” ___ U.S. at ___, 132 S.Ct. at 1315, 

182 L.Ed.2d at 282. 

Accordingly, while petitioner did not have a

constitutional right to PCRA counsel, the alleged ineffectiveness

of PCRA counsel may constitute cause for petitioner’s procedural

default at this stage of the proceedings. Martinez, supra. If

petitioner has established cause I would normally consider

whether petitioner has also established prejudice. 

However, because the only issues that I am considering

procedurally defaulted involve issues regarding petitioner’s

sentence hearing, and not his trial, and because I have already

determined below that petitioner is entitled to a new sentencing

hearing regarding claim one, I conclude that it is unnecessary to

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answer the questions of cause and prejudice at this time because

the only relief petitioner would obtain is a new sentence hearing

which I have already found is necessary based on claim one. 

Finally, petitioner does not allege, nor could he

establish, that the procedural default must be excused because

petitioner’s conviction resulted in a fundamental miscarriage of

justice. 

Accordingly, petitioner’s claims raised for the first

time in petitioner’s PCRA appeal to the Supreme Court of

Pennsylvania, and which were held to be waived, are procedurally

defaulted and will not be addressed on habeas review for the

reasons set forth above. 

25

Sentencing Phase Claims

Trial Counsel’s Failure to Present Mitigation Evidence

Petitioner contends in claim one of the habeas petition

that he was deprived of effective assistance of counsel during

The following claims alleged in petitioner’s habeas petition were

25

raised for the first time in petitioner’s PCRA appeal to the Supreme Court of

Pennsylvania, which held they were waived, and so they are now procedurally

defaulted: (1) petitioner’s second claim alleging that petitioner was entitled

to an instruction that a life sentence means life without parole under

Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133

(1994), as well as under the Sixth, Eighth, and Fourteenth Amendments of the

United States Constitution; (2) petitioner’s third claim that the trial

court’s instructions regarding the catch-all mitigating factor contained in

42 Pa.C.S.A. § 9711(e)(8) violated petitioner’s Sixth, Eighth, and Fourteenth

Amendment rights; (3) petitioner’s fourth claim that constitutional error

resulted from the trial court error and trial counsel’s ineffectiveness

regarding the notice petitioner received on the grave risk aggravating factor

and the instructions given during the sentencing hearing on the grave risk

aggravating factor; (4) petitioner’s fifth claim that the prosecutor made

improper statements during his closing argument at the penalty phase which

violated his Sixth, Eighth, and Fourteenth Amendment rights; and (5)

petitioner’s seventh claim that the trial court failed to properly instruct

the jury on the nature and use of aggravating and mitigating factors in

violation of petitioner’s Sixth, Eighth, and Fourteenth Amendment rights.

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the penalty phase of trial. Specifically, petitioner asserts

that his trial counsel was ineffective because counsel failed to

reasonably investigate and present significant mitigating

evidence during the penalty phase of the trial regarding his

abusive childhood, illnesses and injuries normally associated

with developmental and cognitive delays, and his ability to

adjust to a structured environment during the years he attended a

disciplinary school. Furthermore, petitioner avers that trial

counsel’s ineffectiveness prejudiced him. 

More specifically, petitioner argues that trial counsel

failed to seek out, interview, and present testimony from

petitioner’s family, friends, and employers, failed to request

readily available medical, educational, and court records, and

failed to obtain evaluations by a mental health expert.

Respondents maintain that the determination by the

Supreme Court of Pennsylvania that trial counsel was not

ineffective was not an unreasonable application of United States

Supreme Court precedent. Rather, respondents contend that trial

counsel spoke to petitioner and his family, but was never

informed of petitioner’s abusive childhood or mental health

problems. 

Furthermore, respondents argue that trial counsel had

strategic reasons for presenting only two witnesses during the

penalty phase of petitioner’s trial and for not presenting

evidence of petitioner’s school records or employment history. 

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Finally, respondents contend that trial defense counsel

was not ineffective because counsel discussed the penalty phase

of the trial with petitioner and explained that the Commonwealth

would be presenting aggravating factors. Respondents claim that

trial counsel informed petitioner that he could present

mitigating factors, and that petitioner remained steadfast in his

refusal to testify as well as in his refusal to allow his mother

or any of the other witnesses who counsel had contacted to

testify as to his good character. 

Pennsylvania Court Decisions

In his direct appeal, petitioner claimed ineffective

assistance of counsel for failure to call available witnesses

during the penalty phase of petitioner’s trial and failure to

present evidence of petitioner’s educational background and

employment history. Commonwealth v. Hall, 1995 WL 610249, at *7

(C.P. Chester 1995). The Supreme Court of Pennsylvania affirmed

the Court of Common Pleas of Chester County, holding that

petitioner’s claim of ineffective assistance of counsel was

without merit. Hall, 549 Pa. at 296-301, 701 A.2d at 204-206. 

Specifically, the state Supreme Court concluded that

trial counsel was not ineffective for failing to call witnesses

during the penalty phase because: (1) “trial counsel employed a

reasonable strategy in deciding not to present any of

[petitioner’s] male friends to testify about [petitioner’s] good

character since he was of the opinion that none of [petitioner’s]

male friends would make a good impression on the jury;” (2) the

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Commonwealth would have been able to impeach witnesses Jamal

Price and Alfonso Leak with evidence of prior convictions; and

(3) the testimony of Wanda Turner, petitioner’s girlfriend at the

time of his arrest, and Arnelle Howard, the mother of

petitioner’s second child, would have been cumulative of the

testimony given by Sandra Hall, petitioner’s mother, and Ursula

Jenkins, the mother of petitioner’s first child. 

Moreover, with respect to the testimony of Arnelle

Howard, the state Supreme Court stated that “trial counsel was

not ineffective for failing to interview and present Howard as a

character witness.” Hall, 549 Pa. at 298-301, 701 A.2d at 204-

206.

Furthermore, the Supreme Court of Pennsylvania held

that trial counsel had a “reasonable basis in not presenting

evidence of [petitioner’s] educational history” at the Glen Mills

School because disclosure of the petitioner’s successes would

have led to the introduction of evidence that the Glen Mills

School is a disciplinary school, and petitioner was placed at the

school pursuant to an Order of the Court of Common Pleas of

Philadelphia County. Hall, 549 Pa. at 296, 701 A.2d at 203-204. 

The Supreme Court further concluded that disclosure of

petitioner’s educational background would have led to the

introduction of the following assessment of petitioner by the

Glen Mills School:

[M]any common behavioral concerns were addressed,

those being a poor-self image, a need to develop

inner controls to deal with anger and hostility, a

need to postpone immediate gratification, a need

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to develop respect for authority, a need to

develop respect for the rights and property of

others, a need to develop a higher trust level and

interpersonal relationships, a need to improve

relationships with family, a need to improve

verbal communication skills, a need to learn to

share personal feelings and need to develop social

maturity.

Hall, 549 Pa. at 296, 701 A.2d at 203-204.

Finally, the Supreme Court determined that trial

defense counsel was not ineffective for failing to present

evidence of petitioner’s employment history. Hall, 

549 Pa. at 297, 701 A.2d at 204. After conducting a post-trial

hearing, the trial court found that trial counsel did speak to

petitioner about his employment record, and had determined that

petitioner did not have substantial employment history. Id. 

Specifically, disclosure of petitioner’s employment

record would have led to the introduction of evidence that

petitioner never held a job for longer than eight months and that

petitioner was selling drugs to supplement his income while

employed by an Atlantic City casino. Id. As a result, the state

Supreme Court concluded that trial defense counsel employed a

reasonable trial strategy for not presenting this evidence. Id. 

In his amended PCRA petition, petitioner raised a claim

of ineffective assistance of trial counsel for failure to

investigate and present substantial mitigating evidence. Hall,

582 Pa. at 543, 872 A.2d at 1187. The Supreme Court of

Pennsylvania affirmed the Order of the PCRA court. Hall, 

582 Pa. at 548, 872 A.2d at 1190. Specifically, the Supreme

Court held that petitioner failed to demonstrate that his trial

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counsel’s failure to discover evidence of petitioner’s abusive

childhood, medical problems, and educational history was a result

of an unreasonable investigation because trial counsel was never

informed of this evidence by petitioner or his family members. 

Hall, 582 Pa. at 545-547, 872 A.2d at 1188-1189.

Furthermore, trial counsel testified at the PCRA

hearing:

that he discussed the penalty phase of the trial

with [petitioner], explained that the Commonwealth

would be presenting aggravating factors, and

informed [petitioner] that he could present

mitigating factors. Additionally, counsel

testified that [petitioner] remained steadfast in

his refusal to testify, even after he was advised

by counsel that it would be in his best

interest.... Indeed, Appellant informed counsel

that he did not want his mother or any of the

other witnesses who counsel had contacted to

testify as to his good character. Notwithstanding

[petitioner’s] objections, trial counsel chose to

call [petitioner’s] mother and the mother of one

of his children, both of whom essentially 

testified that [petitioner] had a “good heart” and

was a caring person. 

Hall, 582 Pa. at 547, 872 A.2d at 1190.

Relying on trial counsel’s testimony, the state Supreme

Court concluded that petitioner failed to establish that trial

counsel was ineffective for failing to investigate mitigating

evidence because trial counsel “essentially followed

[petitioner’s] wishes in not presenting additional mitigating

evidence.” Hall, 582 Pa. at 547, 872 A.2d at 1190. 

Legal Standard for Ineffective Assistance of Counsel

Initially, I must consider the proper standard for

assessing ineffective assistance of counsel claims alleging that

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trial counsel failed to properly investigate and present

mitigating evidence during a capital sentencing hearing. 

Following this discussion, I will examine the mitigating evidence

which trial counsel actually presented at petitioner’s sentencing

hearing, followed by an examination of the mitigating evidence

petitioner alleges was available, but not presented, at the time

of the sentencing hearing. 

Finally, I will conduct an analysis of whether the

Supreme Court of Pennsylvania’s decision (that counsel’s

performance was not deficient) was contrary to, or an

unreasonable application of, United States Supreme Court

precedent, or was based on an unreasonable determination of the

facts in light of the record. 

Strickland Standard

A claim of ineffective assistance of counsel involves

two elements which must be shown by defendant: (1) counsel’s

performance must have been deficient, meaning that counsel made

errors so serious that he was not functioning as “the counsel”

guaranteed by the Sixth Amendment; and (2) the deficient

performance prejudiced the defense. Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693

(1984). 

To establish a deficiency in counsel’s performance, a

convicted defendant must demonstrate that the representation fell

below an “objective standard of reasonableness” based on the

particular facts of the case and viewed at the time of counsel’s

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conduct. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-2065, 

80 L.Ed.2d at 693-694; Senk v. Zimmerman, 886 F.2d 611, 615 

(3d Cir. 1989). There is a “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance; that is, defendant must overcome the presumption

that, under the circumstances, the challenged action might be

considered sound trial strategy”. Strickland, 466 U.S. at 689,

104 S.Ct. at 2065, 80 L.Ed.2d at 694-695 (internal quotation

omitted).

To establish the second Strickland prong, “defendant

must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” 466 U.S. at 694, 104 S.Ct. at 2068,

80 L.Ed.2d at 698. 

Specific to counsel’s duty to investigate, the United

States Supreme Court has explained that:

[S]trategic choices made after thorough

investigation of law and facts relevant to

plausible options are virtually unchallengeable;

and strategic choices made after less than

complete investigation are reasonable precisely to

the extent that reasonable professional judgments

support the limitations on investigation. In other

words, counsel has a duty to make reasonable

investigations or to make a reasonable decision

that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision

not to investigate must be directly assessed for

reasonableness in all the circumstances, applying

a heavy measure of deference to counsel's

judgments.

The reasonableness of counsel's actions may

be determined or substantially influenced by the

defendant's own statements or actions. Counsel's

actions are usually based, quite properly, on

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informed strategic choices made by the defendant

and on information supplied by the defendant. 

 . . . 

For example, when the facts that support a certain

potential line of defense are generally known to

counsel because of what the defendant has said,

the need for further investigation may be

considerably diminished or eliminated altogether.

And when a defendant has given counsel reason to

believe that pursuing certain investigations would

be fruitless or even harmful, counsel's failure to

pursue those investigations may not later be

challenged as unreasonable.

Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066, 

80 L.Ed.2d at 695-696.

Duty to Investigate Mitigating Evidence

The United States Supreme Court’s application of the

Strickland standard with regard to defense counsel’s duty to

investigate mitigating evidence provides relevant guidance in

this case. 

In Williams v. Taylor, supra, the United States Supreme

Court concluded that trial counsel was ineffective because his

representation of the petitioner during the penalty phase of the

trial did not meet professional standards and prejudiced the

petitioner. 529 U.S. at 395-397, 120 S.Ct. at 1514-1516, 

146 L.Ed.2d at 419-420. 

The record in Williams established that trial counsel

did not begin to prepare for the penalty phase until a week

before the trial. Williams, 529 U.S. at 395, 120 S.Ct. at 1514,

146 L.Ed.2d at 419. The record also demonstrated that trial

counsel presented the testimony of three witnesses during the

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penalty phase: petitioner’s mother, two neighbors who briefly

described the petitioner as a “nice boy” and not violent, and a

taped excerpt of a psychiatrist who explained that, during an

earlier robbery, the petitioner removed the bullets from a gun to

ensure no one was physically injured. Williams, 529 U.S. at 369, 

120 S.Ct. at 1500, 146 L.Ed.2d at 403. 

However, the United States Supreme Court held that

trial counsel “failed to conduct an investigation that would have

uncovered extensive records graphically describing [petitioner’s]

nightmarish childhood, not because of any strategic calculation

but because they incorrectly thought that state law barred access

to such records.” Williams, 529 U.S. at 395, 120 S.Ct. at 1514,

146 L.Ed.2d at 419. The Court also explained that trial counsel

failed to introduce available evidence that petitioner was

“borderline mentally retarded” or to seek prison records, which

demonstrated petitioner’s commendable acts and nonviolent

behavior. Williams, 529 U.S. at 396, 120 S.Ct. at 1514, 

146 L.Ed.2d at 419. 

Furthermore, the United States Supreme Court in

Williams explained that although not all of the additional

evidence was favorable, “the failure to introduce the

comparatively voluminous amount of evidence that did speak in

[petitioner’s] favor was not justified by a tactical decision to

focus on [petitioner’s] voluntary confession.” Williams, 

529 U.S. at 396, 120 S.Ct. at 1514, 146 L.Ed.2d at 420. The

Supreme Court held that these omissions “clearly demonstrate that

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trial counsel did not fulfill their obligation to conduct a

thorough investigation of the [petitioner’s] background.” 

Williams, 529 U.S. at 396, 120 S.Ct. at 1514-1515, 146 L.Ed.2d 

at 420. 

Finally, the Supreme Court determined that the state

supreme court’s determination that petitioner was not prejudiced

was unreasonable because it failed to evaluate all of the

mitigation evidence available to trial defense counsel. 

Williams, 529 U.S. at 397-398, 120 S.Ct. at 1515, 146 L.Ed.2d at

421.

In Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527,

2536, 156 L.Ed.2d 471, 485-486 (2003), the United States Supreme

Court emphasized that the focus of the inquiry regarding whether

counsel exercised reasonable professional judgment, “is not

whether counsel should have presented a mitigation case,” but,

rather, “whether the investigation supporting counsel’s decision

not to introduce mitigating evidence of [petitioner’s] background

was itself reasonable.” (emphasis in original). The Court

further explained that “Strickland does not establish that a

cursory investigation automatically justifies a tactical decision

with respect to sentencing strategy.” Wiggins, 

539 U.S. at 527, 123 S.Ct. at 2538, 156 L.Ed.2d at 488.

Based on this rationale, the United States Supreme

Court in Wiggins concluded that trial counsel were ineffective

for “abandon[ing] their investigation of petitioner’s background

after having acquired only rudimentary knowledge of his history

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from a narrow set of sources” and “in light of what counsel

actually discovered” in the records they did obtain. Wiggins, 

539 U.S. at 524-525, 123 S.Ct. at 2537, 156 L.Ed.2d at 487. 

Specifically, the record in Wiggins demonstrated that

trial counsels’ investigation drew from three sources: (1) the

results of a psychological testing, which revealed that

petitioner had difficulty coping with demanding situations and

exhibited features of personality disorder; (2) the presentence

investigation report; and (3) records from Baltimore County

Department of Social Services detailing petitioner’s placements

in multiple foster homes. Wiggins, 539 U.S. at 523, 

123 S.Ct. at 2537, 156 L.Ed.2d at 486.

Finally, after reweighing the evidence in aggravation

against the totality of available mitigating evidence, the United

States Supreme Court concluded that the petitioner was prejudiced

by counsel’s ineffectiveness. The Supreme Court reasoned that

the petitioner’s sentencing jury only heard one significant

mitigating factor, and “[h]ad the jury been able to place

petitioner’s excruciating life history on the mitigating side of

the scale, there is a reasonable probability that at least one

juror would have struck a difference balance.” Wiggins, 

539 U.S. at 537, 123 S.Ct. at 2543, 156 L.Ed.2d at 495.

Furthermore, counsel’s duty to investigate mitigating

evidence persists even in the absence of support from petitioner.

In Rompilla v. Beard, 545 U.S. 374, 377, 125 S.Ct. 2456, 2460, 

162 L.Ed.2d 360, 369 (2005), the United States Supreme Court held

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“that even when a capital defendant’s family members and the

defendant himself have suggested that no mitigating evidence is

available, his lawyer is bound to make reasonable efforts to

obtain and review material that counsel knows the prosecution

will probably rely on as evidence of aggravation at the

sentencing phase of trial.” 

Similarly, in Porter v. McCollum, the United States

Supreme Court held that although the petitioner was fatalistic

and uncooperative in trial counsel’s investigation, counsel still

must “conduct some sort of mitigation investigation.” 

558 U.S. 30, 40, 130 S.Ct. 447, 453, 175 L.Ed.2d 398, 406

(2009)(emphasis in original). 

In Rompilla, supra, trial counsel interviewed

petitioner and five family members and consulted with three

mental health experts in an effort to uncover mitigation

evidence. 545 U.S. at 381-382, 125 S.Ct. at 2462, 162 L.Ed.2d at

372. The petitioner’s contributions were minimal and he “was

even actively obstructive by sending counsel on false leads.” 

545 U.S. at 381, 125 S.Ct. at 2462, 162 L.Ed.2d at 372. The

state postconviction court characterized trial counsel’s

interviews of family members as “detailed.” Rompilla, 

545 U.S. at 381-382, 125 S.Ct. at 2462-2463, 162 L.Ed.2d at 372. 

Defense trial counsel in Rompilla did not seek

petitioner’s education records, medical records, records of his

adult and juvenile incarcerations, or the record of petitioner’s

prior conviction. Rompilla, 545 U.S. at 382, 125 S.Ct. at 2463,

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162 L.Ed.2d at 372. However, had trial counsel obtained the

record of petitioner’s prior conviction, “[t]he accumulated

entries would have destroyed the benign conception of

[petitioner’s] upbringing and mental capacity” that trial counsel

gleaned from only talking with the petitioner and his family

members. Rompilla, 545 U.S. at 391, 125 S.Ct. at 2468, 

162 L.Ed.2d at 378. 

The United States Supreme Court in Rompilla held that

this ineffective assistance of trial counsel prejudiced the

petitioner because “the undiscovered evidence, taken as a whole,

might well have influenced the jury’s appraisal’ of

[petitioner’s] culpability.” Rompilla, 545 U.S. at 393, 125

S.Ct. at 2469, 162 L.Ed.2d at 379. (internal quotations omitted).

The United States Supreme Court has subsequently

confirmed that Williams, Wiggins, and Rompilla, supra, present

the appropriate standards for evaluating whether counsel’s

performance was deficient at the penalty phase. Cullen v.

Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1406-1407 & n.17, 

179 L.Ed.2d 557, 578 & n.17 (2011). The Supreme Court additionally confirmed that Strickland requires a case-by-case analysis

of the evidence available and the circumstances faced by defense

counsel when evaluating the reasonableness of counsel’s

investigation into mitigating circumstances. Cullen, 

__ U.S. at __, 131 S.Ct. at 1406-1408, 179 L.Ed.2d at 578-580.

In Cullen, the United States Supreme Court concluded

that defense counsel was not ineffective in presenting sparse

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mitigating evidence because his client was so unsympathetic that

counsel’s decision to only call his client’s mother at the

penalty phase, in an attempt to create sympathy for his client’s

family, was a reasonable strategy in light of the circumstances. 

__ U.S. at __, 131 S.Ct. at 1405-1406, 179 L.Ed.2d at 577. 

The Supreme Court in Cullen held that because of

defendant’s extensive criminal past and lack of remorse,

counsel’s reasonable decision to focus on creating sympathy for

defendant’s family made “particular investigations unnecessary”,

such as seeking mitigating evidence to “humaniz[e] the

defendant”. Cullen, __ U.S. at __, 131 S.Ct. at 1407-1408, 

179 L.Ed.2d at 579-580 (internal quotations omitted). 

Further, the Supreme Court explained that the state

court decisions that defendant was not prejudiced were entitled

to deference because the additional available mitigation evidence

largely duplicated the evidence already presented during the

proceedings and, further, was of questionable mitigating value. 

Cullen, __ U.S. at __, 131 S.Ct. at 1410, 179 L.Ed.2d at 582. 

American Bar Association Guidelines 

Another source relied upon by the United States Supreme

Court to determine whether counsel’s conduct falls within the

range of prevailing professional norms is the standards

articulated by the American Bar Association. Strickland, 

466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. 

The Supreme Court explained that the American Bar

Association standards are only guides. “No particular set of

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detailed rules for counsel's conduct can satisfactorily take

account of the variety of circumstances faced by defense counsel

or the range of legitimate decisions regarding how best to

represent a criminal defendant.” Id.; see also Rompilla, 

545 U.S. at 387-388, 125 S.Ct. at 2466, 162 L.Ed.2d at 375-376;

Bond v. Beard, 539 F.3d at 288. The ABA Guidelines are to be

regarded “merely as evidence of what reasonably diligent

attorneys would do.” Bobby v. Van Hook, 558 U.S. 4, 8, 

130 S.Ct. 13, 17, 175 L.Ed.2d 255, 259 (2009). 

Specific to capital cases, the American Bar Association

Standards instruct counsel for capital defendants to comply with

the American Bar Association Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases (“ABA Guidelines”). 

ABA Standards for Criminal Justice: Prosecution and Defense

Function (3d ed. 1993), Standard 4-1.2(c). 

The ABA Guidelines adopted in February 1989 are

applicable in this case because they were in effect at the time

trial counsel represented petitioner. American Bar Association

Guidelines for the Appointment and Performance of Counsel in

Death Penalty Cases 1989, available at

http://adwww2.americanbar.org/DeathPenalty_migrated/

RepresentationProject/PublicDocuments/1989Guidelines.pdf. See

Bobby, supra. 

“The ABA Guidelines provide that investigations into

mitigating evidence ‘should comprise efforts to discover all

reasonably available mitigating evidence and evidence to rebut

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any aggravating evidence that may be introduced by the

prosecutor.’” Wiggins, 539 U.S. at 524, 123 S.Ct. at 2537, 

156 L.Ed.2d at 486 (quoting ABA Guidelines, 11.4.1(C)). 

According to the ABA Guidelines, this preparation and

investigation for the penalty phase should begin “immediately

upon counsel’s entry into the case” and “should be conducted

regardless of any initial assertion by the client that mitigation

is not to be offered.” ABA Guidelines 11.8.3 and 11.4.1(C). 

During the investigation, counsel should collect

information relevant to the penalty phase including: (1) medical

history; (2) educational history; (3) employment and training

history; (4) family and social history; (5) prior adult and

Juvenile record; (6) prior correctional experience; and 

(7) religious and cultural influences. ABA Guidelines

11.4.1(D)(2)(C). Counsel should also secure the assistance of an

expert where it is necessary for the presentation of mitigating

evidence. ABA Guidelines 11.4.1(D)(7)(D). 

Additionally, counsel should investigate the following

witnesses and evidence: (1) witnesses familiar with, and evidence

relating to, the client’s life and development, from birth to the

time of sentencing, who would be favorable to the client; 

(2) expert witnesses to provide medical, psychological,

sociological or other explanations for the offenses for which the

client is being sentenced, to give a favorable opinion as to the

client’s capacity for rehabilitation; (3) witnesses with

knowledge and opinions about the lack of effectiveness of the

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death penalty itself; and (4) witnesses drawn from the victim’s

family or intimates who are willing to speak against killing the

client. ABA Guidelines 11.8.3(F).

The ABA Guidelines also provide standards regarding

counsel’s duty to present “all reasonably available evidence in

mitigation unless there are strong tactical reasons to forego

some portion of such evidence.” ABA Guidelines 11.8.6(A). 

Reasonably available evidence may include medical history;

educational history; employment and training history; family and

social history; prior correctional experience; rehabilitative

potential of the client; record of prior offenses, especially

where there is no record, a short record, or a record of nonviolent offenses; and expert testimony concerning the impact of

such evidence on the client. ABA Guidelines 11.8.6(B).

Mitigation Evidence Presented at Penalty Phase

In the case before this court, petitioner’s counsel

called two witnesses at the penalty phase of his trial, who

testified generally to petitioner’s good character and

willingness to help others. In addition, trial counsel asked the

court to acknowledge petitioner’s other family members and

friends seated in the court room by asking them to stand and show

their support for petitioner. 

26

See Notes of Testimony of the jury trial conducted before The

26

Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas of

Chester County, Pennsylvania on October 28, 1994 (“N.T. October 28, 1994)

pages 913-914, which can be found in the state-court record forwarded to the

Clerk of Court, United States District Court for the Eastern District of

Pennsylvania and made part of the record in the within matter.

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Petitioner’s mother, Sandra Hall, testified first. She

testified that petitioner lived with her until he was twenty

years old and helped take care of his two sisters. Ms. Hall 27

explained that petitioner’s father moved out of their home when

petitioner was only three years old and that she never received

financial support from petitioner’s father. She testified that 28

petitioner had been working since the age of nineteen and made

efforts to provide additional support to her when she was in

need. 

29

Ms. Hall also testified that petitioner did not

complete his formal education because “he was expecting a child”,

and, instead, got a job in order to provide his child’s mother

with financial support. She described petitioner as a loving 30

father to his two daughters, stating that he often spent time

with them. 

31

Ms. Hall further described petitioner as a caring and

forgiving person, recounting that petitioner “found it in his

heart to forgive [his father].” Ms. Hall’s testimony concluded 32

See N.T. October 28, 1994 at pages 879-880.

27

See Id. at page 879.

28

See Id. at pages 881-882.

29

See Id. at page 883.

30

See Id. at page 883.

31

See Id. at pages 884-885.

32

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by explaining petitioner’s remorse for his actions in the robbery

and shooting, and that he realizes that he made a mistake.33

Ursula Jenkins, the mother of petitioner’s first child,

also testified during the penalty phase of petitioner’s trial. 

Ms. Jenkins testified that she had known petitioner for seven

years and that she and petitioner have a daughter together.34

Ms. Jenkins described petitioner as sensitive and supportive,

specifically, throughout her pregnancy and when she suffered the

loss of her grandmother. She further explained that petitioner 35

had a good relationship with their daughter, stating that

petitioner “called her, and he would come and see her, he would

come and take her places, and he would buy her things.” 

36

Ms. Jenkins also testified that petitioner helped her forgive her

father because, similar to petitioner, her father abandoned her

as a child.37

Mitigation Evidence Available at the Time of Penalty Phase

Petitioner contends that his trial counsel failed to

reasonably investigate his life, medical, educational, and

employment history, and performed no expert mental health

evaluation in preparation for the penalty phase of petitioner’s

trial. In support of this contention, petitioner demonstrates,

See N.T. October 28, 1994, at page 887.

33

See Id. at pages 897-898.

34

See Id. at pages 900-901.

35

See Id. at page 900.

36

See Id. at page 899.

37

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through affidavits, records, and testimony, that he suffered an

abusive and neglectful childhood, a history of seizures and

several severe head traumas. He also presents school records

concerning his ability to adjust to a structured environment

during his years in a disciplinary school. 

Affidavits from petitioner’s family members, family

court records, medical records, and school records provide

compelling evidence of petitioner’s abusive and violent

childhood. 

Had trial defense counsel interviewed petitioner’s

family members and obtained these readily available records (as

evidenced by them now being acquired by petitioner’s counsel and

made a part of the record), trial counsel presumably would have

learned that the abusive relationship between petitioner’s

mother, Sandra Hall, and father, Eulah “Mitch” Hall, began before

petitioner was born. He also may have learned that while

petitioner’s mother was pregnant with petitioner, petitioner’s

father punched her in the stomach. 

38

According to the affidavit of Sandra Hall, the abuse of

petitioner’s mother continued after petitioner was born, and

occurred in his presence. Several affidavits reveal that 39

petitioner’s father knocked petitioner’s mother down a flight of

Declaration and Affidavit of Sandra Hall, Appendix to Petitioner’s

38

Memorandum of Law in Support of Petition for a Writ of Habeas Corpus

(“Petitioner’s Appendix”), Exhibit A.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

39

Exhibit A; Affidavit/Declaration of Priscilla Thompson, Petitioner’s Appendix,

Exhibit F.

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stairs, kicked her, hit and punched her, raped her, pulled knives

on her and threatened to kill her. According to Ms. Hall’s 40

affidavit, on one occasion, petitioner’s father kept petitioner’s

mother in the house and repeatedly raped and beat her until

friends were able to free her. 

41

According to four of the affidavits, petitioner

witnessed his father break his mother’s arm and routinely abuse

her. When petitioner’s mother attempted to argue or fight back,

petitioner’s father beat her again. In addition to this physical

abuse, petitioner’s father was verbally and emotionally abusive,

regularly referring to petitioner’s mother as “bitch” and “whore”

and insulting her in front of others.42

Trial counsel presumably would have also learned that

in addition to the violence that petitioner witnessed between his

mother and father, petitioner and his sister were also abused.43

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

40

Exhibit A; Declaration and Affidavit of Eula Hall, Petitioner’s Appendix,

Exhibit B; Affidavit/Declaration of Sharon McKenzie, Petitioner’s Appendix,

Exhibit E; Affidavit/Declaration of Priscilla Thompson, Petitioner’s Appendix,

Exhibit F; Affidavit/Declaration of Diane Howard, Petitioner’s Appendix,

Exhibit G; Declaration and Affidavit of Eleanor Paschall, Petitioner’s

Appendix, Exhibit I.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

41

Exhibit A.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

42

Exhibit A; Declaration and Affidavit of Eula Hall, Petitioner’s Appendix,

Exhibit B; Affidavit/Declaration of Priscilla Thompson, Petitioner’s Appendix,

Exhibit F; Affidavit/Declaration of Diane Howard, Petitioner’s Appendix,

Exhibit G.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

43

Exhibit A; Affidavit/Declaration of Priscilla Thompson, Petitioner’s Appendix,

Exhibit F.

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According to petitioner’s mother, petitioner’s father beat

petitioner, calling him a “faggot” when he cried. According to 44

several affidavits, petitioner’s mother was also abusive toward

her children and beat them with a belt. 

45

Petitioner’s mother explained that petitioner even drew

a door on the wall of his room in an effort to escape from the

horrors of his home. Petitioner’s aunt described him as a “sad 46

and confused child” who “became a nervous kid because of the way

he had to live.”47

In addition, affidavits of five individuals reveal that

petitioner’s father brought drugs into petitioner’s home and used

drugs in the presence of petitioner and his sister. To satisfy 48

his addiction, petitioner’s father used money that was budgeted

for household expenses to buy drugs, which resulted, at times, in

no electricity, heat, or adequate food in the home. 

49

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

44

Exhibit A.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

45

Exhibit A; Declaration and Affidavit of Eula Hall, Petitioner’s Appendix,

Exhibit B; Affidavit/Declaration of Priscilla Thompson, Petitioner’s

Appendix, Exhibit F.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

46

Exhibit A.

Affidavit/Declaration of Priscilla Thompson, Petitioner’s

47

Appendix, Exhibit F.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

48

Exhibit A; Declaration and Affidavit of Eula Hall, Petitioner’s Appendix,

Exhibit B; Affidavit/Declaration of Priscilla Thompson, Petitioner’s Appendix,

Exhibit F; Declaration and Affidavit of Charles McCurry Jr., Petitioner’s

Appendix, Exhibit H; Declaration and Affidavit of Eleanor Paschall,

Petitioner’s Appendix, Exhibit I.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

49

Exhibit A.

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Affidavits reveal that the violence displayed by

petitioner’s father toward his family ended when petitioner was

five years old. At that time, his father was arrested and

convicted for aggravated assault. 

50

However, several affidavits indicate that while

petitioner’s father was incarcerated, petitioner’s mother became

involved in a second violent relationship with Steve Paschall.51

Petitioner attempted to protect his mother when Mr. Paschall

abused her, but, instead, Mr. Paschall would turn on

petitioner. As a result, petitioner’s mother began drinking as 52

a way to cope with the abuse. 

53

Although the relationship between petitioner’s mother

and Mr. Paschall ended after eleven years, family court records

indicate that the abuse continued because they shared custody of

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

50

Exhibit A; Court History of Eula Hall, Petitioner’s Appendix, Exhibit C.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

51

Exhibit A; Declaration and Affidavit of Eula Hall, Petitioner’s Appendix,

Exhibit B; Affidavit/Declaration of Priscilla Thompson, Petitioner’s

Appendix, Exhibit F; Affidavit/Declaration of Diane Howard, Petitioner’s

Appendix, Exhibit G; Declaration and Affidavit of Charles McCurry Jr.,

Petitioner’s Appendix, Exhibit H; Declaration and Affidavit of Eleanor

Paschall, Petitioner’s Appendix, Exhibit I.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

52

Exhibit A; Affidavit/Declaration of Priscilla Thompson, Petitioner’s Appendix,

Exhibit F; Affidavit/Declaration of Diane Howard, Petitioner’s Appendix,

Exhibit G; Declaration and Affidavit of Charles McCurry Jr., Petitioner’s

Appendix, Exhibit H.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

53

Exhibit A; Affidavit/Declaration of Priscilla Thompson, Petitioner’s Appendix,

Exhibit F; Affidavit/Declaration of Diane Howard, Petitioner’s Appendix,

Exhibit G.

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petitioner’s younger half-sister. Petitioner dealt with his 54

violent surroundings by drinking and spending as much time as

possible outside of the home.55

Testimony in an evidentiary hearing before the trial

judge indicated that petitioner’s friends were also available to

testify to petitioner’s alleged reputation in the community for

good character. Jamal Tyson knew petitioner for ten years and

was present and available to testify at the penalty phase of

petitioner’s trial. Mr. Tyson was a college graduate working as

a computer operator and a paralegal. He would have testified

that petitioner acted as a role model and father figure to him

and his younger brother; encouraged him to stay in school and, on

some occasions, escorted him to school; provided him with

clothes; and helped Mr. Tyson’s mother with groceries and

projects around the house.56

An affidavit from petitioner’s cousin, Donald Holloway,

indicates that Mr. Holloway would have testified that petitioner

looked out for him and kept him out of trouble. Specifically,

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

54

Exhibit A; Affidavit/Declaration of Priscilla Thompson, Petitioner’s Appendix,

Exhibit F; Declaration and Affidavit of Charles McCurry Jr., Petitioner’s

Appendix, Exhibit H; Family Court records of the Court of Common Pleas of

Philadelphia County, Petitioner’s Appendix; Exhibit O.

Affidavit/Declaration of Priscilla Thompson, Petitioner’s

55

Appendix, Exhibit F.

See Notes of Testimony of the evidentiary hearing before The

56

Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas of

Chester County, Pennsylvania on October 20, 1995 (“N.T. October 28, 1994")

pages 4-12.

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Mr. Holloway would have testifed that petitioner talked him out

of using violence on at least one occasion. 

57

Had trial counsel interviewed petitioner’s family

members and obtained readily available medical records, trial

counsel would have learned that petitioner also suffered from

medical problems from an early age. Doctors at St. Christopher’s

Hospital made a note in petitioner’s medical chart when he was

four-and-a-half months old to “watch neuro development.”58

Furthermore, petitioner was brought to the emergency

room numerous times suffering from seizures. At fourteen 59

months old, petitioner experienced a convulsion which lasted

thirty minutes. Medical records reflect that, following the

seizure, petitioner was lethargic and was not bearing weight on

his right leg. Petitioner was diagnosed with a seizure disorder

after results from an Electroencephalography exam came back

abnormal. 

60

In addition, petitioner suffered a series of other

medical conditions. Medical records indicate that when

petitioner was eight months old, he was brought to the emergency

Affidavit/Declaration of Donald Holloway, Petitioner’s Appendix,

57

Exhibit J.

Medical records from St. Christopher’s Hospital for Children,

58

Petitioner’s Appendix, Exhibit M.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

59

Exhibit A; Declaration and Affidavit of Eula Hall, Petitioner’s Appendix,

Exhibit B; Affidavit/Declaration of Sharon McKenzie, Petitioner’s Appendix,

Exhibit E; medical records from St. Christopher’s Hospital for Children,

Petitioner’s Appendix, Exhibit M.

Medical records from St. Christopher’s Hospital for Children,

60

Petitioner’s Appendix, Exhibit M.

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room, and his entire face was swollen. Petitioner was also

diagnosed multiple times as a young child with pneumonia and was

frequently brought to the hospital because of difficulty

breathing and skin rashes. Petitioner’s medical records also

indicate that petitioner was not brought to many scheduled

appointments. 

61

Furthermore, according to his mother’s affidavit, in

1982, while petitioner was riding his bicycle he was hit by a

car. He hit his head and lost consciousness. After the

accident, petitioner suffered from severe and debilitating

headaches.62

Petitioner’s family members and friends assert that

they were available and willing to testify at the penalty phase

of petitioner’s trial. Eight potential witnesses (excluding

petitioner’s mother) stated that defense counsel never contacted

them. Petitioner’s mother did attest, however, that trial 63

counsel never asked her about petitioner’s upbringing.64

Medical records from St. Christopher’s Hospital for Children,

61

Petitioner’s Appendix, Exhibit M.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

62

Exhibit A.

Declaration and Affidavit of Eula Hall, Petitioner’s Appendix,

63

Exhibit B; Declaration and Affidavit of Steve Paschall, Petitioner’s Appendix,

Exhibit D; Affidavit/Declaration of Sharon McKenzie, Petitioner’s Appendix,

Exhibit E; Affidavit/Declaration of Priscilla Thompson, Petitioner’s

Appendix, Exhibit F; Affidavit/Declaration of Diane Howard, Petitioner’s

Appendix, Exhibit G; Declaration and Affidavit of Charles McCurry Jr.,

Petitioner’s Appendix, Exhibit H; Declaration and Affidavit of Eleanor

Paschall, Petitioner’s Appendix, Exhibit I; Affidavit/Declaration of Donald

Holloway, Petitioner’s Appendix, Exhibit J.

Declaration and Affidavit of Sandra Hall, Petitioner’s Appendix,

64

Exhibit A.

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Petitioner also contends that trial counsel should have

investigated and presented evidence of his school records to

demonstrate his low intelligence and absence of parental support. 

Had trial counsel obtained these readily available school

records, he would have learned that, in the third grade,

petitioner’s teacher commented that petitioner was “a hard worker

but he has a problem getting along with his classmates” and

needed to “avoid arguing with his classmates.” His fourth grade

teacher noted that petitioner needed to “show more self

confidence” and that “he seems very disturbed by the

disruptiveness of his classmates.” 

65

Petitioner’s seventh grade teacher commented that

petitioner “has been exhibiting poor behavior” and “may repeat

the 7 grade unless there is a vast improvement in his grades.” th

In 1987, petitioner missed ninety-two days of school and did not

pass tenth grade. Furthermore, correctional records from 66

December 1987, reveal that a psychological evaluation concluded

that petitioner was functioning with an IQ of 73, considerably

below the normative average. 

67

Petitioner argues that trial counsel should have sought

the readily available records from his court placement at the

See Petitioner’s Appendix, Exhibit N, school records from the

65

School District of Philadelphia.

Id.

66

See Petitioner’s Appendix, Exhibit P, Psychological Summary dated

67

December 17, 1987.

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Glen Mills School and presented evidence of his success in a

structured environment. 

68

Glens Mills School is a private juvenile placement

facility for 13 to 18 year old children. Glen Mills has both

private placements and court-ordered placements, with the great

majority coming from the courts. Students are placed at Glen

Mills from all over the country and around the world. Glen Mills

provides both a regular school curriculum, as well as numerous

vocational programs. 

Petitioner argues that in addition to his school

records, testimony from Scott Grau, custodian of records for the

Glen Mills School, would have indicated that he earned vocational

certificates, obtained his General Equivalency Diploma (“GED”)

and was taking college preparatory classes at Glen Mills.69

The Glen Mills School records show that, initially,

however, petitioner lacked confidence and had difficultly sharing

his feelings. Specifically, the records indicate:

He is always attentive and somewhat apprehensive

about sharing his personal feelings. When

[petitioner] does join the interaction, his

comments are usually on target and indicative of

considerable empathy and genuineness, but because

he seldom gives input his impact is rather

In support of this argument, petitioner quotes Skipper v. South

68

Carolina, 476 U.S. 1, 7, 106 S.Ct. 1669, 1672, 90 L.Ed.2d 1, 8 (1986) for the

proposition that “a defendant’s disposition to make a well-behaved and

peaceful adjustment to life in prison is itself an aspect of his character

that is by its nature relevant to the sentencing determination.”

See Notes of Testimony of the evidentiary hearing conducted before

69

The Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas

of Chester County, Pennsylvania on September 21, 1995 (“N.T. September 21,

1995) pages 13-15; Petitioner’s Appendix, Exhibit P, Glen Mills School 4th

Comprehensive Review dated December 29, 1988.

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insignificant. Once he develops more confidence

in himself and as he becomes more trusting of the

other group members, it is felt that

[petitioner’s] ability to profit from this form of

therapy will increase significantly.70

Petitioner’s later records reflect his growth and

achievements in a structured setting. In addition to earning his

GED and two vocational certificates, petitioner was elected by

the Glen Mills staff to leadership positions in the school as a

result of his positive adjustments. 

Specifically, staff elected petitioner as a member of

the Battling Bulls Club, a student government organization “that

identifies positive students and their positive interaction while

they are at Glen Mills” and as a unit representative, a position

for which less than ten percent of the students are deemed

qualified. Finally, Mr. Grau could have testified that the 71

school administration believed that petitioner could have

benefitted from further placement at the Glen Mills School to

continue college preparatory courses, and even become eligible

for college scholarship programs. 

72

Additionally, petitioner argues that trial counsel was

ineffective for failing to further investigate or verify the

information petitioner provided regarding his employment history. 

Had trial counsel verified petitioner’s employment history, he

Petitioner’s Appendix, Exhibit P, Glen Mills School 1st

70

Comprehensive Report dated February 26, 1988.

See N.T. September 21, 1995, pages 11-12; Glen Mills School 3rd

71

Comprehensive Report dated October 27, 1988, Petitioner’s Appendix, Exhibit P.

See Id. at pages 19-21.

72

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would have learned that petitioner worked in Atlantic City

casinos for approximately one year, he worked as a salesperson at

Olympia Sports in Philadelphia for a year, he held jobs on

various assembly lines, and drove a cab for a year. He also 73

held other additional temporary jobs, such as selling Christmas

trees and t-shirts, to earn extra money to support his daughters

and his girlfriend’s four other children. 

74

Finally, petitioner contends that counsel was

ineffective for failing to consult with, and present testimony

from, a mental health expert, who could have explained to a jury

how cognitive, developmental emotional impairments impacted

petitioner at the time of the incident. 

In this regard, petitioner contends that counsel was

also ineffective for failing to contact Charles M.J. Nester,

Esquire, the public defender assigned to petitioner’s case before

petitioner retained private counsel. Petitioner contends that

such a contact would have revealed that Attorney Nester retained

a forensic psychiatrist to evaluate petitioner. Following the

evaluation, the forensic psychiatrist recommended that petitioner

undergo further testing by a psychologist.75

See Notes of Testimony of the evidentiary hearing conducted before

73

the Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas

of Chester County, Pennsylvania on October 20, 1995 (“N.T. October 20, 1995")

pages 98-106.

N.T. October 20, 1995, pages 98-106.

74

See Affidavit/Declaration of Charles M.J. Nester, Esq.,

75

Petitioner’s Appendix, Exhibit K.

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On August 27, 2001, Dr. Carol Armstrong, a psychologist

specializing in neuropsychology, reviewed petitioner’s various

medical, educational, and court records; family affidavits;

transcripts from his legal proceedings; and other records, and

conducted a forensic neuropsychological assessment of petitioner. 

She maintained that this mental health information was available,

and that the administered tests were the same as, or,

substantially similar to, tests available at the time of

petitioner’s trial.76

Dr. Armstrong explained that the materials she reviewed

“demonstrate that [petitioner] suffered a long history of severe

psychological and physical abuse and neglect, together with

chronic trauma/stress which significantly impact cognitive and

developmental development.” Dr. Armstrong further explained 77

that because of these emotional and mental impairments, and

petitioner’s medical background, including his head injuries and

seizure disorder, petitioner “suffers from impairment in

cognitive function, including his ability to reason, his

perception and his ability to integrate information. 

Furthermore, petitioner suffers from impairment in his ability to

engage in behavior based on thoughtful reflection, consideration

of alternatives and consequences, and good judgment.” 

78

Appendix A-HH to the Answer to Petition for Writ of Habeas Corpus,

76

which answer was filed on behalf of respondents on May 30, 2006 (Respondents’

Appendix”) Appendix DD, Exhibit A ¶ 18,

Respondents’ Appendix DD, Exhibit A ¶ 4,

77

Respondents’ Appendix DD, Exhibit A ¶ 16

78

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In conclusion, Dr. Armstrong opined “to a reasonable

degree of neuropsychological certainty that, at the time of the

incident for which he was convicted, petitioner was under the

influence of extreme mental and emotional disturbance and that

his capacity to conform his conduct to the requirements of law

was substantially impaired.” Dr. Armstrong further stated that 79

no neuropsychological evaluation was performed on petitioner, but

“[a] review of the background materials provided...and available

at the time of [petitioner’s] trial...clearly raises numerous red

flags as to the possibility of brain damage.”80

Trial Counsel’s Deficient Performance

Because the Supreme Court of Pennsylvania reached the

merits of the issue regarding trial counsel’s deficient

performance in both petitioner’s direct appeal and PCRA appeal, I

review this issue under the deferential AEDPA standard. See 

28 U.S.C. §§ 2254(d)(1)-(2); see also Jacobs, 395 F.3d at 100. 

In this case, I conclude that trial counsel

inadequately prepared for the penalty phase of petitioner’s

trial, and that his conduct fell below professional standards. 

Similar to the defense counsel in Wiggins, trial counsel

“abandoned [his] investigation of petitioner’s background after

having acquired only rudimentary knowledge of his history from a

narrow set of sources.” 539 U.S. at 524, 123 S.Ct. at 2537, 

156 L.Ed.2d at 487.

Respondents’ Appendix DD, Exhibit A ¶ 17,

79

Respondents’ Appendix DD, Exhibit A ¶ 18.

80

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Furthermore, “counsel can hardly be said to have made a

strategic choice...when [he] has not yet obtained the facts on

which such a decision could be made.” United States v. Gray, 

878 F.2d 702, 711 (3d Cir. 1989). Given the circumstances in

this case, trial counsel’s actions were “not colorably based on

tactical considerations but merely upon a lack of diligence.” 

Id. at 712. 

Relying on the decisions of the Supreme Court of

Pennsylvania, respondents argue that petitioner has not

demonstrated that trial counsel was ineffective in his

investigation and representation of petitioner at the penalty

phase. 

Initially, respondents argue that trial counsel was not

ineffective in preparing for the penalty phase because petitioner

thwarted trial counsel’s ability to present mitigating testimony. 

Next, respondents assert that trial counsel’s decision not to

present evidence of petitioner’s Glen Mills School records and

testimony of petitioner’s family and friends was strategic. 

Finally, respondents contend that trial counsel was unable to

discover information regarding petitioner’s abusive childhood and

medical issues not because his investigation fell below

prevailing professional norms, but because petitioner and his

family failed to inform him of this evidence.

Respondents’ first argument is unpersuasive.

Respondents claim that trial counsel adequately prepared for the

penalty phase and that petitioner’s reliance on Rompilla is

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misplaced because petitioner explicitly prohibited counsel from

presenting testimony. 

In this case, although trial counsel did not know of

any information that the Commonwealth would probably rely on as

evidence of aggravation similar to Rompilla, trial counsel was

ineffective for failing to meet the prevailing professional norms

with respect to investigating potential mitigating evidence. 

Rompilla, 545 U.S. at 387, 125 S.Ct. at 2466, 162 L.Ed.2d at 375;

see also ABA Guidelines 11.4.1 and 11.8.3. Specifically, trial

counsel did not obtain the above-described readily available

records and failed to adequately interview petitioner. Trial

counsel also failed to question petitioner’s mother and other

family members and friends concerning his abusive childhood,

medical issues, and other possible mitigating evidence. 

In addition, similar to Rompilla, even if trial counsel

sufficiently interviewed petitioner or petitioner’s mother and

they were unresponsive or provided misleading information, a

thorough investigation of petitioner’s readily available 

St. Christopher Hospital records, Philadelphia public school

records, and Glen Mills School records, would have revealed

conflicting information. Moreover, had trial counsel contacted

petitioner’s prior counsel, Attorney Nester, he would have

obtained a psychological evaluation of petitioner recommending

further testing. “With this information, [trial] counsel would 81

See Affidavit/Declaration of Charles M.J. Nester, Esq.,

81

Petitioner’s Appendix, Exhibit K.

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have become skeptical” of his impressions of petitioner and

“would unquestionably have gone further to build a mitigation

case.” Rompilla, 545 U.S. at 391, 125 S.Ct. at 2469, 

162 L.Ed.2d at 378. 

Trial counsel has a duty to conduct a proper

investigation of petitioner’s medical, educational, and

employment history in an effort to discover mitigating evidence,

regardless of whether petitioner is cooperative or uncooperative. 

See Porter, ___ U.S. at ___, 130 S.Ct. at 453, 

175 L.Ed.2d at 406; Rompilla, 545 U.S. at 377, 125 S.Ct. at 2460,

162 L.Ed.2d at 369. In fact, trial counsel testified at the

evidentiary hearing that “[petitioner] assisted me

well....[U]nder the circumstances...I think he did everything

that he could possibly do.” 

82

In addition, there is no evidence in the record that

petitioner’s own statements or actions support a conclusion that

trial counsel’s limited investigation was reasonable or that

petitioner gave trial counsel “reason to believe that pursuing

certain investigations would be fruitless or even harmful.” 

Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 

80 L.Ed.2d at 696.

Nonetheless, respondents assert that trial counsel was

not ineffective because he followed petitioner’s alleged

See Notes of Testimony of the evidentiary hearing conducted before

82

The Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas

of Chester County, Pennsylvania on October 27, 1995 (“N.T. October 27, 1995")

page 80.

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direction not to present additional mitigating evidence after his

mother testified. During oral argument Gerald P. Morano,

Esquire, argued on behalf of respondents that the United States

Supreme Court decision in Schriro v. Landrigan, 550 U.S. 465, 

127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), was controlling because

petitioner informed his trial counsel that he did not want to

present mitigation evidence. 

83

In Schriro, the United States Supreme Court concluded

that “it was not objectively unreasonable...to conclude that a

defendant who refused to allow the presentation of any mitigating

evidence could not establish Strickland prejudice based on his

counsel’s failure to investigate further possible mitigating

evidence.” 550 U.S. at 478, 127 S.Ct. at 1942, 

167 L.Ed.2d at 847. 

Distinguishing the case from Rompilla, where the

defendant refused to assist in the development of a mitigation

case, the Supreme Court explained that the petitioner in Schriro

informed the trial court that he did not want mitigating evidence

presented and “would have undermined the presentation of any

mitigating evidence that his attorney might have uncovered.” 

Schriro, 550 U.S. at 477, 127 S.Ct. at 1941-1942, 

167 L.Ed.2d at 845-846. 

Notes of Testimony (“N.T.”) of the oral argument held May 15, 2007

83

in Philadelphia, Pennsylvania, styled “Oral Argument before the Honorable

James Knoll Gardner[,] United States District Court Judge,” pages 52-54, 57,

and 60.

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In Schriro, at the penalty phase of petitioner’s trial,

trial counsel attempted to offer testimony from the petitioner’s

mother and ex-wife. However, both refused to testify at the

petitioner’s request. Schriro, 550 U.S. at 469, 

127 S.Ct. at 1937, 167 L.Ed.2d at 841. 

Furthermore, the court questioned the petitioner in

Schriro with respect to his decision to withhold mitigating

evidence:

THE COURT: Mr. Landrigan, have you instructed your

lawyer that you do not wish for him to bring any

mitigating circumstances to my attention?

THE DEFENDANT: Yeah.

THE COURT: Do you know what that means?

THE DEFENDANT: Yeah.

THE COURT: Mr. Landrigan, are there mitigating

circumstances I should be aware of? 

THE DEFENDANT: Not as far as I’m concerned. 

Schriro, 550 U.S. at 469, 127 S.Ct. at 1937, 167 L.Ed.2d at 841. 

As a result, the trial judge asked the trial counsel to

make a proffer of the witnesses’ testimony; however, the

petitioner interrupted counsel. For example, when the trial

counsel attempted to explain that the petitioner had worked a

legitimate job to provide for his family, the petitioner

interrupted stating, “[i]f I wanted this to be heard, I’d have my

wife say it.” Schriro, 550 U.S. at 470, 127 S.Ct. at 1937, 

167 L.Ed.2d at 841 (internal quotations omitted). 

Finally, at the conclusion of the sentencing hearing,

the trial judge asked the petitioner if he had anything to say,

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to which the petitioner responded, “I think if you want to give

me the death penalty, just bring it right on. I’m ready for it.” 

Schriro, 550 U.S. at 470, 127 S.Ct. at 1938, 167 L.Ed.2d at 842

(internal quotations omitted).

However, this case is highly distinguishable from

Schriro, where the petitioner undermined the presentation of

mitigating evidence by prohibiting the witnesses’ testimony and

interrupting counsel when he attempted to make a proffer of the

witnesses’ testimony. 550 U.S. at 469-470, 127 S.Ct. at 1937-

1938, 167 L.Ed.2d at 841-842. In this case, petitioner never

instructed trial counsel not to present mitigating evidence, nor

did he make any attempts to undermine trial counsel’s

presentation of mitigating evidence.

Furthermore, the trial court in Schriro specifically

questioned the petitioner regarding his desire to withhold

mitigating evidence. 550 U.S. at 469, 127 S.Ct. at 1937, 

167 L.Ed.2d at 841. However, in this case, petitioner’s colloquy

focused solely on whether petitioner was going to testify

himself. During the penalty phase of petitioner’s trial, and

after the testimony of petitioner’s mother, trial defense counsel

explained:

based on my conversation with my client, and also

discussions with the District Attorney here, my

client has expressed to me an intention not to

testify here today. And in addition, he pretty

emphatically does not want anyone else to take the

witness stand and go through what his mother has

gone through, other close friends, and also the

mother of his daughter, does not want them to have

to go through what his mother has just gone

through, and he does not want them to testify.

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I realize that I am counsel to him, and

ultimately who I call is really my responsibility,

but I will use the same analogy with the Court: I

am driving the car, but it’s his car, Judge, and I

don’t know what – I just would rather abide by his

wishes at this point.

I would ask that he be colloquied on the

record in regards to this, and be subject to

questioning in regards to his specific desires.84

The court then questioned petitioner regarding his

intention to testify:

THE COURT: All right, Mr. Hall, if you will come

forward and take the witness stand. 

THE COURT: Mr. Hall, do you understand the purpose

of today’s hearing?

THE DEFENDANT: Yes, ma’am, I do.

THE COURT: Are you today under the influence of

any drug, alcohol, or any medication?

THE DEFENDANT: No, ma’am, I am not.

THE COURT: Okay. Do you understand that you have

the absolute right of, what we call, [allocution],

to say whatever you want to say in front of this

jury, who is going to decide your sentence?

THE DEFENDANT: Yes, ma’am.

THE COURT: And do you understand that they must

consider whether to impose a life sentence or a

death sentence?

THE DEFENDANT: Yes, ma’am, I understand.

THE COURT: And do you understand that, even though

I tell them – and I will tell them – that they

must not draw any adverse inference from your

silence, that it may be very difficult for them

not to wonder why, now, of all times, you didn’t

say anything?

N.T. October 28, 1994, pages 889-890.

84

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THE DEFENDANT: I understand.

THE COURT: You understand that risk?

THE DEFENDANT: I understand what you are saying,

yes, I do.

THE COURT: All right. Have you had enough time to

talk to your attorney, Mr. Miller, about this

decision?

THE DEFENDANT: Yes, I have.

THE COURT: Okay. Is he in any way suggesting to

you that you should not testify?

THE DEFENDANT: No, ma’am.

THE COURT: Okay. Has he made any threats to you?

THE DEFENDANT: No.

THE COURT: Has he made any promises to you.

THE DEFENDANT: No, ma’am.

THE COURT: Has the District Attorney, or anyone

else from the prosecution side of the case, made

any threats to you about testifying?

THE DEFENDANT: No, ma’am.

THE COURT: Or made any promises to you?

THE DEFENDANT: No.

THE COURT: Excuse me. Mr. Miller, do you want to

ask any further questions?

MR. MILLER: I can’t think of any right now, your

Honor. It’s just that –

MS. SANDRA HALL: Mr. Miller

MR. MILLER: May I have a moment, your Honor?

THE COURT: Certainly.

(Brief recess.)

MR. MILLER: Your Honor, may I speak to the

witness? I mean, if I could talk to him on the

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witness stand, or if he could come here, just

momentarily?

THE COURT: Certainly. You can go right up there. 

There is a chair. I will step away so I can’t

hear your conversations.

MR. MILLER: That’s fine, your Honor.

(Brief discussion between the defendant and

counsel held off the record.)

MR. MILLER: Thank you, your Honor. Your Honor, my

client, as a result of me having a discussion with

him, he has changed his position with regards to

having his witnesses testify, but I don’t know, I

did not discuss with him whether he has changed

his position with regards to him testifying.

THE COURT: Let me ask you this: Would you like

additional time to consider your decision about

not testifying yourself?

THE DEFENDANT: I am not going to testify at all.

THE COURT: Okay. Now you didn’t know what this

verdict was until about 6:00 last night. So have

you thought about this since 6:00 last night,

about whether you would testify at this part of

your trial or not?

THE DEFENDANT: I have thought about it for months.

THE COURT: Okay. Well, before you knew what the

verdict would be?

THE DEFENDANT: Yes, ma’am.

THE COURT: So you did it, if the verdict is Murder

I, you had decided you were not going to testify?

THE DEFENDANT: Yes, ma’am.

THE COURT: All right. You may take your seat. We

will find the jury and bring them back in for the

other witnesses’ testimony.

(Witness excused.)85

N.T. October 28, 1994, pages 890-894.

85

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Respondents’ contention that petitioner did not want to

provide further mitigation evidence is without merit. 

Specifically, respondents mischaracterize petitioner’s testimony

when it argues that petitioner “voluntarily waiv[ed] his right to

present evidence.” 

86

Rather, it is evident from petitioner’s testimony that

the colloquy addresses a single issue, namely, whether petitioner

waived his right to testify at the penalty phase, and not whether

he waived his right to present mitigating evidence. Trial

defense counsel does, however, refer to petitioner’s desire to

present mitigating evidence in his conversation with the court,

stating that petitioner “changed his position with regards to

having his witnesses testify.” 

87

Accordingly, this testimony does not support an

assertion that petitioner instructed his counsel not to present

any mitigating evidence. See, e.g., Schriro, 550 U.S. at 469,

127 S.Ct. at 1937, 167 L.Ed.2d at 841; Morris v. Beard, 

2007 WL 1795689, at *24 n.23 (E.D.Pa. June 20, 2007) 

(Rodriguez, J.). 

Moreover, trial defense counsel testified at the

evidentiary hearing that he was no longer following petitioner’s

directive at the penalty phase of the trial: “by the time we got

Memorandum of Law in Support of the Commonwealth’s Answer to

86

Petition for Writ of Habeas Corpus, filed December 6, 2006, page 29.

See N.T. October 28, 1994, page 893.

87

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to the sentencing phase, I didn’t care what he thought. I felt

that I had to do whatever I believed, even if he disliked it.”88

Accordingly, for the foregoing reasons, the Supreme

Court of Pennsylvania conclusion that trial counsel performed

adequately because “he essentially followed [petitioner’s] wishes

in not presenting additional mitigating evidence” was contrary to

United States Supreme Court precedent, and relied on an

unreasonable determination of the facts in light of the evidence

presented in the state courts. 28 U.S.C. §§ 2254(d)(1)-(2); see

Williams, 529 U.S. at 413, 120 S.Ct. at 1523, 146 L.Ed.2d at 430.

Next, respondents argue that trial defense counsel made

a reasonable tactical decision not to present evidence of

petitioner’s Glen Mills School records because the introduction

of the records would have led to the disclosure of an unfavorable

report of petitioner. Respondents similarly assert that the

decision not to interview and present testimony from petitioner’s

family members and friends was also sound trial strategy.

Even applying a “heavy measure of deference to

counsel’s judgments” pursuant to Strickland, the record in this

case does not establish that trial defense counsel’s decisions

were reasonable, strategic decisions informed by a thorough

investigation, or that trial defense counsel’s limited

investigation was supported by reasonable professional judgment. 

See Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066, 

80 L.Ed.2d at 695-696. Rather, “the ‘strategic decision’ the

N.T. October 27, 1995, page 87.

88

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state court[] and [respondents] all invoke to justify counsel's

limited pursuit of mitigating evidence resembles more a post-hoc

rationalization of counsel's conduct than an accurate description

of their deliberations prior to sentencing.” Wiggins, 

539 U.S. at 526-527; 123 S.Ct. at 2538; 156 L.Ed.2d at 488; see

Bond, 539 F.3d at 289. 

Trial defense counsel testified that he did not seek

petitioner’s records from the Glen Mills School because he knew

it was a disciplinary school, and the fact that he did not have

these records was “not a big deal.” He testified that he was 89

not familiar with the Battling Bulls Club, and that he was

unaware that petitioner held positions of responsibility,

obtained certificates of achievement, and enrolled in college

preparatory classes. Rather, without reviewing petitioner’s

records or interviewing any staff members of the school, he

characterized petitioner’s experience at Glen Mills School as

insignificant because “almost every black person can run fast and

jump high. They should play basketball. So, for a black man to

say that, is not anything of significance to me and to a lot of

people in my opinion....”90

In petitioner’s direct appeal, the Supreme Court of

Pennsylvania incorrectly concluded that trial counsel action’s

were strategically designed to exclude both the fact that the

Glen Mills School is a disciplinary school and a June 9, 1988

See N.T. October 27, 1995, page 157.

89

Id. at pages 155-159.

90

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report assessing petitioner as having “many common behavioral

problems.” The Supreme Court failed to determine whether trial 91

counsel’s decision not to seek petitioner’s records from the Glen

Mills School demonstrated reasonably professional judgment.

Therefore, the Supreme Court of Pennsylvania’s conclusion that

trial defense counsel’s actions were strategic decisions was

contrary to United States Supreme Court precedent. See Williams,

529 U.S. at 413, 120 S.Ct. at 1523, 146 L.Ed.2d at 430. 

Furthermore, even if the Supreme Court of Pennsylvania

identified Strickland as the correct governing legal principle

applicable to petitioner’s case, the conclusion that trial

defense counsel’s investigation was adequate constitutes an

unreasonable application of Strickland. See Wiggins, 539 U.S. at

527-528, 123 S.Ct. at 2538-2539, 156 L.Ed.2d at 488-489. Trial

defense counsel cannot claim that his decision to exclude

petitioner’s Glen Mills School records was strategic because he

never sought these records or investigated any other information

concerning petitioner’s experience at the school. See Bond, 

539 F.3d at 289; Gray, 878 F.2d at 711-712. 

The Glen Mills School 2nd Comprehensive Report, dated June 9,

91

2008, evaluated the first five months of petitioner’s placement in the school.

Petitioner’s subsequent 3rd and 4th Comprehensive Reports demonstrate that he

earned vocational certificates, obtained his GED and was taking college

preparatory classes, among other accomplishments. Regardless of the content

of the reports, the focus of the inquiry regarding trial counsel’s deficient

performance is the reasonableness of his investigation, specifically, whether

his limited investigation was supported by reasonable professional judgment.

See Wiggins v. Smith, 539 U.S. at 523, 123 S.Ct. at 2536, 156 L.Ed.2d at 485-

486; see also Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066,

80 L.Ed.2d at 695-696.

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Moreover, it is irrelevant that the introduction of

mitigating evidence would have led to the disclosure of

unfavorable information. The United States Supreme Court has

explained that: 

the failure to introduce the comparatively

voluminous amount of evidence that did speak in

[the defendant’s] favor was not justified by

[trial counsel’s] tactical decision to focus on

[the defendant’s] voluntary confession. Whether

or not those omissions were sufficiently

prejudicial to have affected the outcome of

sentencing, they clearly demonstrate that trial

counsel did not fulfill their obligation to

conduct a thorough investigation of the

defendant's background.

Williams, 529 U.S. at 396; 120 S.Ct. at 1514-1515, 

146 L.Ed.2d at 420. Here, petitioner’s Glen Mills School records

provided a wealth of relevant mitigating evidence regarding

petitioner’s ability to succeed in a structured environment. 

See Skipper, 476 U.S. at 7, 106 S.Ct. at 1672, 90 L.Ed.2d at 8. 

Respondents also suggest that trial defense counsel

employed a reasonable tactical strategy in not presenting

testimony of petitioner’s family members or friends during the

penalty phase. 

However, trial defense counsel’s decision not to

investigate potential mitigating evidence was not supported by

reasonable professional judgment because the investigation did

not meet prevailing professional norms. See Rompilla, 

545 U.S. at 387, 125 S.Ct. at 2465-2466, 162 L.Ed.2d at 375-376;

Wiggins, 539 U.S. at 533-534, 123 S.Ct. at 2541-2542, 

156 L.Ed.2d at 492-493; see also ABA Guidelines 11.4.1 and 

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11.8.3. In this case, trial defense counsel only obtained

rudimentary information concerning petitioner’s background. 

Specifically, in response to questions about what

mitigating information he sought from petitioner, trial defense

counsel testified at the evidentiary hearing that he merely asked

petitioner about his employment history. However, trial defense

counsel testified that he found this information insignificant,

and he failed to verify the information or conduct any further

investigation into petitioner’s employment history.92

Trial defense counsel did speak to petitioner’s mother

over the phone and in the car on the way to the courthouse. 

93

Specifically, he asked petitioner’s mother to prepare a written

list of possible character witnesses. Trial defense counsel 94

did not, however, provide petitioner’s mother with specific types

of character witnesses that she should include in the list, for

example, petitioner’s previous employers, clergymen, family, or

friends, or to what specific information these potential

witnesses should be prepared to testify. 

95

See N.T. October 27, 1995, pages 154-155.

92

Id., at page 162.

93

Petitioner’s mother testified that she was first questioned by

94

trial defense counsel with regard to the penalty phase of petitioner’s trial

after the guilty verdict was rendered, the night before the penalty phase was

scheduled to begin. See N.T. September 21, 1995, page 92. However, the

Honorable Paula Francisco Ott, in her Findings of Fact, determined that

petitioner’s mother was not credible in her testimony that “she did not know

about the penalty phase until the day of the verdict.” Respondents’

Appendix U, Findings of Fact of the Honorable Paula Francisco Ott on

January 25, 1996 (“Findings of Fact, January 25, 1996”), page 22.

N.T. September 21, 1995, pages 93-94.

95

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In concluding that he would not present testimony from

any of these witnesses at the penalty phase, trial defense

counsel explained that he was trying to “speed this up as quickly

as possible and give [the jury] the nuts and bolts and...[not]

all the little flowers and trimmings.” Regardless of the 96

content of their testimony, trial defense counsel further

explained that he did not present mitigating evidence from

petitioner’s male friends because the “jury may look upon a black

male in a negative light.”97

Furthermore, trial defense counsel did not subpoena any

witnesses to present mitigating testimony at the penalty phase of

the trial and did not interview any prospective witnesses in his

office. Affidavits from petitioner’s family and friends 98

indicate that trial defense counsel never contacted them in an

effort to discover mitigating evidence. The trial court also 99

found that trial defense counsel failed to contact and interview

Arnelle Howard, the mother of petitioner’s second child, even

N.T. October 27, 1995, page 88.

96

Id. at pages 167-169.

97

Id. at page 182.

98

Declaration and Affidavit of Eula Hall, Petitioner’s Appendix,

99

Exhibit B; Declaration and Affidavit of Steve Paschall, Petitioner’s Appendix,

Exhibit D; Affidavit/Declaration of Sharon McKenzie, Petitioner’s Appendix,

Exhibit E; Affidavit/Declaration of Priscilla Thompson, Petitioner’s

Appendix, Exhibit F; Affidavit/Declaration of Diane Howard, Petitioner’s

Appendix, Exhibit G; Declaration and Affidavit of Charles McCurry Jr.,

Petitioner’s Appendix, Exhibit H; Declaration and Affidavit of Eleanor

Paschall, Petitioner’s Appendix, Exhibit I; Affidavit/Declaration of Donald

Holloway, Petitioner’s Appendix, Exhibit J.

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though she was available and willing to testify at the penalty

phase.100

This case is distinguishable from Cullen, supra,

wherein counsel was not ineffective for failing to present

additional mitigating evidence at the penalty phase because the

defendant was so unsympathetic that “the jury simply won’t buy

it”. __ U.S. at __, 131 S.Ct. at 1408, 179 L.Ed.2d at 580

(internal quotations omitted). The Supreme Court held that

counsel made a reasonable decision to limit his investigation and

presentation of mitigation evidence to creating sympathy for the

defendant’s family, mainly by calling defendant’s mother at the

penalty phase. Cullen, __ U.S. at __, 131 S.Ct. at 1405-1406, 

179 L.Ed.2d at 577. The Supreme Court held that “[t]here comes a

point where a defense attorney will reasonably decide that

another strategy is in order, thus ‘mak[ing] particular

investigations unnecessary.’” Cullen, __ U.S. at __, 

131 S.Ct. at 1407, 179 L.Ed.2d at 579 (quoting Strickland, 

466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695).

However, in this case, the available mitigation

evidence, far from constituting a hopeless attempt to create

sympathy for petitioner, included significant facts that

potentially show petitioner could be rehabilitated. Had trial

defense counsel questioned petitioner or his family members about

his life, educational and medical history, and obtained

See N.T. October 27, 1995, page 188; Respondents’ Appendix U,

100

Findings of Fact, January 25, 1996, page 20.

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petitioner’s school, medical, and court records, he would have

found significant mitigating evidence that was available at the

time of the penalty phase. This information was relevant in an

investigation for mitigating evidence under the prevailing

professional norms as stated in the ABA Guidelines. See ABA

Guidelines 11.4.1; see also Rompilla, 545 U.S. at 387, 

125 S.Ct. at 2465-2466, 162 L.Ed.2d at 375-376; Wiggins, 

539 U.S. at 524, 123 S.Ct. at 2537, 156 L.Ed.2d at 486-487.

Moreover, trial defense counsel did not pursue his

investigation of mitigating evidence “expeditiously” and

“immediately upon counsel’s entry into the case.” See 

ABA Guidelines 11.4.1. At the evidentiary hearing, trial defense

counsel testified that, he had only “minimized” discussions with

petitioner about the penalty phase of the trial at the beginning

of his representation, and that these discussions only became

“specific later on.”101

In addition, trial defense counsel decided not to

present the testimony of petitioner’s friends at the penalty

phase after only a brief conversation with the witnesses in the

hallway of the courthouse. Specifically, the trial court found

that trial counsel “met Mr. Tyson for the first time on the

morning of the penalty hearing and spoke with him very briefly”

and “did not conduct a full interview with Mr. Tyson about his 

See N.T. October 27, 1995, pages 148 and 152.

101

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knowledge of [petitioner’s] background and character.” 

102

Accordingly, trial defense counsel failed to meet the prevailing

standards of timeliness. See ABA Guidelines 11.8.3; see also

Williams, 529 U.S. at 395, 120 S.Ct. at 1514, 146 L.Ed.2d at 419.

Finally, respondents argue that trial defense counsel

spoke to petitioner and his family for the express purpose of

ascertaining potential mitigating evidence. Respondents argue

trial defense counsel did not discover information regarding

Respondents’ Appendix U, Findings of Fact, January 25, 1996,

102

page 21. Respondents argue that trial defense counsel was not ineffective for

failing to call five witnesses in order to establish mitigating evidence,

including Wanda Turner, Jamal Tyson, Jamal Price, Alfonso Leak, and Arnelle

Howard. However, petitioner’s Writ of Habeas Corpus only alleges that trial

defense counsel was ineffective for failing to properly interview and call as

witnesses Jamal Tyson, Jamal Price and Arnelle Howard, and I therefore do not

address trial defense counsel’s alleged failure to interview and call as

witnesses Wanda Turner or Alfonso Leak.

As I previously noted, the trial court found that trial defense

counsel failed to contact Arnelle Howard in an effort to discover mitigating

evidence and first spoke to Jamal Tyson on the morning of the penalty phase of

petitioner’s trial. See Respondents’ Appendix U, Findings of Fact,

January 25, 1996, pages 20-21. Accordingly, these findings support my

conclusion that trial defense counsel’s performance was deficient for his

failure to conduct a proper and timely investigation.

With respect to Jamal Price, the trial court found that he was

also available to testify at the penalty phase. However, trial defense

counsel did not call him as a witness because trial defense counsel did not

believe that the jury would find his testimony credible, and because he could

have been impeached with evidence of a prior conviction. See Respondents’

Appendix U, Findings of Fact, January 25, 1996, pages 21-22. Given these

circumstances, trial defense counsel’s decision not to call Mr. Price may have

been sound trial strategy.

However, it is unclear from the record when trial defense counsel

interviewed Mr. Price, which may further support my conclusion that trial

defense counsel’s investigation of mitigating evidence was not conducted

expeditiously. See N.T. October 27, 1995, pages 164, 167-169; Notes of

Testimony of the evidentiary hearing conducted before The Honorable Paula

Francisco Ott, former Judge of the Court of Common Pleas of Chester County,

Pennsylvania on October 25, 1995 (“N.T. October 25, 1995) pages 110-111 and

143.

Nonetheless, even if trial defense counsel had interviewed Mr.

Price early in his investigation, I still conclude that trial defense counsel

was ineffective based on the overwhelming evidence establishing that his

conduct did not meet prevailing professional norms.

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petitioner’s abusive childhood and medical issues because

petitioner and his family failed to inform trial defense counsel

of these facts.

Petitioner, however, does not have “a duty to instruct

counsel how to perform such a basic element of competent

representation as the inquiry into a defendant’s background.” 

Bond, 539 F.3d at 288; see also Marshall v. Cathel, 428 F.3d 452

(3d Cir. 2005). In United States v. Gray, 878 F.2d 702, 712 

(3d Cir. 1989), the United States Court of Appeals for the Third

Circuit held that a defendant’s “reluctance to subpoena

witnesses...did not absolve [trial counsel] of his independent

professional responsibility to investigate what

information...potential witnesses possessed.” 878 F.2d at 712.

Furthermore, in Bond v. Beard, 539 F.3d 256 (3d Cir.

2008), the Third Circuit addressed a similar claim of

ineffectiveness of counsel for failing to adequately investigate

mitigating evidence and prepare for the penalty phase of a

capital trial.

In Bond, trial defense counsel introduced testimony

from seven family members and friends at the petitioner’s penalty

phase hearing, who testified to petitioner’s general good

character and willingness to help others. Id. at 279. However,

trial defense counsel began preparations for the penalty phase of

petitioner’s trial the night before it began, failed to obtain

readily available school and medical records, and did not conduct

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a meaningful inquiry into the petitioner’s family life. Id. at

288. 

The Third Circuit explained that the Supreme Court of

Pennsylvania’s conclusion that trial defense counsel’s

investigation met prevailing professional standards was

unreasonable. Id. at 289. The Third Circuit held that “it is

difficult to call [trial counsel’s] decisions ‘strategic’ when

they failed to seek rudimentary background information” about

petitioner. Id. 

Furthermore, the Third Circuit reasoned: 

We will not excuse this conduct on the ground that

[petitioner] and his family members did not tell

counsel that his background provided fertile

territory for mitigation arguments. Neither [the

petitioner] nor his family had a duty to instruct

counsel how to perform such a basic element of

competent representation as the inquiry into a

defendant’s background.

Id. 

As I previously stated, had trial defense counsel

conducted a reasonable investigation beyond the rudimentary

knowledge of petitioner’s history, he would have discovered

extensive mitigating evidence. See Wiggins, 539 U.S. at 524-525, 

123 S.Ct. at 2537, 156 L.Ed.2d at 486-487; Williams, 

529 U.S. at 395, 120 S.Ct. at 1514, 146 L.Ed.2d at 419. 

The Supreme Court of Pennsylvania incorrectly concluded

that trial defense counsel was not ineffective, holding that:

trial counsel testified at length during the

remand hearing regarding his efforts at

ascertaining potential mitigating

evidence....Specifically, he testified that he

discussed the penalty phase of the trial with

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[petitioner], explained that the Commonwealth

would be presenting aggravating factors, and

informed [petitioner] that he could present

mitigating factors. Additionally, counsel

testified that [petitioner] remained steadfast in

his refusal to testify, even after he was advised

by counsel that it would be in his best interest.

Hall, 582 Pa. at 547, 872 A.2d at 1190. 

However, as Justice Thomas G. Saylor explained in

dissent, “it should by now be regarded as well-established that

the proper focus of the inquiry is on the investigation that

counsel performed relative to such mitigation, and not on the

actions that the capital defendant may or may not have taken on

or of his own initiative.” Hall, 582 Pa. at 553, 

872 A.2d at 1193.

Therefore, I conclude that the Supreme Court of

Pennsylvania majority’s conclusion is contrary to United States

Supreme Court precedent because it fails to address the question

of whether trial counsel’s investigation for potentially

mitigating evidence is reasonable under prevailing professional

norms. Accordingly, I conclude that trial counsel’s performance

was deficient even under the deferential AEDPA standard of

review. See 28 U.S.C. §§ 2254(d)(1)-(2). 

Prejudice

Petitioner was prejudiced by trial defense counsel’s

failure to investigate and present mitigating evidence at the

penalty phase of trial.

To establish prejudice, petitioner must demonstrate

that “there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068,

80 L.Ed.2d at 698. “Because the jury’s decision must be

unanimous” in Pennsylvania, petitioner can satisfy this standard

“if there is a reasonable probability that the presentation of

the [available mitigating evidence] would have convinced one

juror” to find that the mitigating factors outweighed the

aggravating factors. Jermyn v. Horn, 266 F.3d 257, 309 (3d Cir.

2001); see Wiggins, 539 U.S. at 537, 123 S.Ct. at 2543, 

156 L.Ed.2d at 495. 

Therefore, after weighing the totality of the

mitigating evidence that could have been presented at trial with

the aggravating evidence that was presented, the reviewing court

must determine whether there is a reasonable probability that the

jury, after hearing this mitigating evidence, would have returned

a different sentence. Wiggins, 539 U.S. at 534, 536, 

123 S.Ct. at 2542-2543, 156 L.Ed.2d at 494. 

In this case, the Supreme Court of Pennsylvania did not

reach this prong of the Strickland analysis in its review of

either petitioner’s direct appeal or petitioner’s PCRA appeal. 

Accordingly, because the AEDPA standard of review is

inapplicable, I review this issue de novo. See Thomas, 

570 F.3d at 113. 

As previously stated, the jury found two aggravating

circumstances in this case: (1) petitioner committed the killing

while in the perpetration of a felony; and (2) during the

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commission of the killing, petitioner knowingly created a grave

risk of death to another person in addition to the victim. The

jury determined the aggravating factors outweighed the one

mitigating factor that the events leading up to the fatal shot

included the possibility of a struggle. 

However, trial defense counsel could and should have

used evidence of petitioner’s life, medical, and educational

history to establish two additional mitigating factors,

specifically that: (1) the defendant was under the influence of

extreme mental or emotional disturbance; and (2) the capacity of

the defendant to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law was substantially

impaired. 42 Pa.C.S.A. §§ 9711(e)(2)-(3). Additionally, the

jury could have considered this mitigating evidence in weighing

the catch-all factor with regard to “[a]ny other evidence of

mitigation concerning the character and record of the defendant

and the circumstances of his offense.” 42 Pa.C.S.A. 

§ 9711(e)(8).

Had trial defense counsel properly investigated and

presented evidence of petitioner’s abusive childhood, medical

problems, and school records, the jury would have learned that

petitioner grew up in a violent home, not only witnessing his

father repeatedly beat his mother, but also suffering abuse

himself from his father, mother and his mother’s boyfriend; that

he was diagnosed with a seizure disorder and experienced severe

and debilitating headaches after being hit by a car; and that he

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earned academic achievements, despite his low IQ and poor high

school record, but only after entering the structured and secure

environment of the Glen Mills School.

Had trial defense counsel obtained petitioner’s

medical, school, and court records, and sought an expert

evaluation of petitioner, trial defense counsel could have

presented significant mitigating evidence that at the time of the

incident for which petitioner was convicted, he was under the

influence of extreme mental and emotional disturbance. Expert

testimony also would have demonstrated that petitioner’s capacity

to conform his conduct to the requirements of law was

substantially impaired, and the petitioner’s history raises red

flags of possible brain damage.

It is recognized, however, that the introduction of

this mitigating evidence may have led the Commonwealth to

disclose less favorable information concerning, for example,

petitioner’s placement at a disciplinary school pursuant to a

court Order. However, as explained in Williams, “the failure to

introduce the comparatively voluminous amount of evidence that

did speak in [petitioner’s] favor” could not have been justified

by a decision to only present testimony of petitioner’s general

good character. 529 U.S. at 396, 120 S.Ct. at 1514-1515, 

146 L.Ed.2d at 420. 

Trial defense counsel performed an inadequate and

untimely investigation into petitioner’s life, medical, and

educational history, and abandoned his investigation “after

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having acquired only rudimentary knowledge of his history from a

narrow set of sources.” Wiggins, 539 U.S. at 524-525, 123 S.Ct.

at 2537, 156 L.Ed.2d at 486-487; see also Williams, 529 U.S. at

395, 120 S.Ct. at 1514, 146 L.Ed.2d at 419. Not only did trial

defense counsel fail to interview petitioner’s family and friends

in an expeditious manner, trial defense counsel also failed to

seek petitioner’s readily available medical, school, and court

records. See Bond, 539 F.3d at 291-292 (citing Rompilla, 

545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360). As a result,

trial defense counsel failed to present significant mitigating

evidence. See id.; see also Williams, 529 U.S. at 396, 

120 S.Ct. at 1514-1515, 146 L.Ed.2d at 419-420; Outten v.

Kearney, 464 F.3d 401, 422 (3d Cir. 2006). 

Additionally, in Outten, the Third Circuit held that

trial defense counsel was ineffective and, as a result, the

petitioner was prejudiced because trial defense counsel failed to

present significant mitigation testimony at the penalty phase,

including evidence of the petitioner’s family issues,

neurological condition, psychological problems, and substance

abuse. 464 F.3d at 419-423. 

A reasonable lawyer who understood petitioner’s life,

medical, and educational history would not have merely presented

evidence of petitioner’s positive relationship with his mother

and daughters and general good character in the community. 

Rather, a reasonable lawyer would have presented testimony of

petitioner’s abusive childhood, cognitive and developmental

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issues associated with his seizure disorder and head injury, and

his success in a structured environment. See generally Bond, 

539 F.3d at 292. 

Therefore, given the substantial amount of mitigating

evidence available to trial defense counsel had he conducted an

investigation in accordance with prevailing professional norms, I

conclude that there is a reasonable probability that at least one

juror would have found that the mitigating factors outweighed the

aggravating factors in this case. See Wiggins, 539 U.S. at 537,

123 S.Ct. at 2543, 156 L.Ed.2d at 495; Jermyn, 266 F.3d at 308;

see also Rompilla, 545 U.S. at 393, 125 S.Ct. at 2469, 

162 L.Ed.2d at 379.

Because trial defense counsel’s inadequate

investigation and presentation of mitigating evidence at the

penalty phase of petitioner’s trial fell below an objective

standard of reasonableness, and because petitioner suffered

prejudice as a result of trial defense counsel’s deficient

performance, I conclude that petitioner is entitled to relief

from his death sentence. Accordingly, I grant Mr. Hall’s

petition for writ of habeas corpus on this issue and direct the

Commonwealth to conduct a new sentencing hearing within 180 days

of this Opinion and Order. 

Because I have granted petitioner a new sentencing

hearing based on the ineffectiveness of trial counsel in his

investigation and presentation of mitigating evidence, it is

unnecessary to address petitioner’s alternative arguments that

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the sparse presentation of mitigating evidence violated

petitioner’s Eighth Amendment rights. In addition, petitioner

briefly mentioned that his Fifth and Fourteenth Amendment rights

were violated. Because petitioner failed to fully brief these

issues, and because I am granting relief on other grounds, these

issues will not be addressed. See State Farm Mutual Automobile

Insurance Co. v. Lincow, 715 F.Supp.2d 617, 630 n.6 

(E.D.Pa. 2010)(Robreno, J.). 

Simmons Instruction

Petitioner contends that he is entitled to a new

sentencing hearing because the trial court erred in failing to

instruct the jury that a sentence of life in prison for first

degree murder rendered the petitioner ineligible for parole, in

violation of petitioner’s rights under Simmons v. South Carolina,

512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), as well as

under the Sixth, Eighth, and Fourteenth Amendments. Petitioner

also alleges trial defense counsel was ineffective for failing to

request such instruction.

As discussed in section VI.B., supra, petitioner first

raised this claim on PCRA appeal to the Supreme Court of

Pennsylvania. Accordingly, this claim is procedurally defaulted

and is barred from habeas review. See section VI.C. 

Nonetheless, although this court cannot review the

merits of petitioner’s claim, the relief petitioner seeks has

already been granted pursuant to the grounds raised in the first

claim of petitioner’s habeas petition.

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 Catch-All Mitigating Factor Instruction

Petitioner argues in claims three and seven of the

habeas petition that he is entitled to a new sentencing hearing

because the trial court erred, and trial defense counsel was

ineffective for failing to raise the errors, in charging the jury

on mitigating and aggravating circumstances during the sentencing

hearing. 

As discussed in the sections on Procedural Default and

the Relaxed Waiver Rule and Cause and Prejudice supra,

petitioner’s claims that the trial court’s instruction on 

42 Pa.C.S.A. § 9711(e)(8) and the trial court’s definition of

aggravating and mitigating circumstances violated petitioner’s

Sixth, Eighth, and Fourteenth Amendment rights are procedurally

defaulted because petitioner raised them for the first time in

his PCRA appeal to the Supreme Court of Pennsylvania.

Petitioner additionally contends that the trial court

erred in defining preponderance of the evidence when explaining

the burden of proof for mitigating circumstances. Petitioner

alleges the trial court should have informed the jury that the

standard for finding mitigating factors was whether the evidence

showed the fact sought to be proved was more likely than not. 

Petitioner claims the trial court’s instruction failed to convey

that preponderance of the evidence was a less demanding standard

than proof beyond a reasonable doubt. 

Petitioner asserts that because the trial court failed

to adequately define the burden of proof, it is reasonably likely

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that the jury understood the instruction as limiting their

consideration of available mitigation evidence in violation of

petitioner’s Fifth, Eighth, and Fourteenth Amendment rights. 

Petitioner further alleges trial defense counsel was ineffective

for failing to object to the instruction.

Respondents contend that petitioner only raised the

claim on direct appeal to the Supreme Court of Pennsylvania as a

claim for ineffective assistance of trial defense counsel for

failing to object to the preponderance of the evidence

instruction. Accordingly, respondents contend petitioner’s claim

for trial court error is not exhausted and is procedurally

defaulted.

However, the trial court error claim was fairly

presented in petitioner’s direct appeal brief. The argument

regarding the preponderance of the evidence instruction appears

under the header entitled “The Trial Court Erred in the

Instructions to the Jury during the Penalty Phase.” Petitioner 103

addressed both the claim for trial court error and the claim for

trial counsel’s ineffectiveness. As further support that

petitioner fairly presented his claim for trial court error, the

Supreme Court of Pennsylvania addressed the merits of whether the

trial court erred in the instruction. See Hall, 

549 Pa. at 304-306, 701 A.2d at 208.

Because the Supreme Court of Pennsylvania addressed the

merits of petitioner’s claim, I review this issue under the

Respondents’ Appendix V, Brief and Appendix for Appellant, page 1.

103

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deferential AEDPA standard. See 28 U.S.C. §§ 2254(d)(1)-(2); 

see also Jacobs, 395 F.3d at 100. 

At the sentencing hearing, the trial court provided the

following instruction:

The Commonwealth must prove any aggravating

circumstances beyond a reasonable doubt. This

does not mean that the Commonwealth must prove the

aggravating circumstance beyond all doubt or to a

mathematical certainty. A reasonable doubt is the

kind of doubt that would cause a reasonable and

sensible person to hesitate before acting upon a

matter of importance in his or her own affairs. A

reasonable doubt must be a real doubt. It may not

be one that a juror imagines or makes up to avoid

carrying out an unpleasant duty.

By contrast, the defendant must prove any

mitigating circumstance. However, he only has to

prove it by the preponderance of the evidence,

that is, by the greater weight of the evidence.104

The Supreme Court of Pennsylvania held that the trial

court’s definition of preponderance of the evidence accurately

and correctly conveyed the burden of proof to the jury. Hall,

549 Pa. at 305, 701 A.2d at 208. The court held that the

instruction properly conveyed that preponderance of the evidence

means the evidence for the proposition to be proven is greater

than the weight of the evidence against the proposition. Id.

Although the definition was “admittedly terse,” the

Supreme Court of Pennsylvania held that when the definition was

viewed in context of the entire instruction, it sufficiently

conveyed the proper meaning of petitioner’s burden of proof. 

549 Pa. at 305-306, 701 A.2d at 208. Accordingly, trial defense

N.T. October 28, 1994, pages 928-929.

104

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counsel was not ineffective for failing to object to a charge

that was free from error. 549 Pa. at 306, 701 A.2d at 208. 

Applying the AEDPA deferential standard of review, the

Supreme Court of Pennsylvania decision is not contrary to or an

unreasonable application of United States Supreme Court

precedent. 

As the Supreme Court of Pennsylvania held, the effect

of the instruction on the validity of petitioner’s proceeding

must be reviewed according to the “well-established proposition

that a single instruction to a jury may not be judged in

artificial isolation, but must be viewed in the context of the

overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-147, 

94 S.Ct. 396, 400, 38 L.Ed.2d 368, 374 (1973). To warrant

federal habeas relief, “it must be established not merely that

the instruction is undesirable, erroneous, or even universally

condemned, but that it violated some right which was guaranteed

to the defendant by the Fourteenth Amendment.” Donnelly v.

DeChristoforo, 416 U.S. 637, 642-643, 94 S.Ct. 1868, 1871, 

40 L.Ed.2d 431, 436 (1974) (internal quotations omitted).

To establish a due process violation on habeas review,

the error must have constituted a “failure to observe that

fundamental fairness essential to the very concept of justice.” 

Donnelly, 416 U.S. at 642, 94 S.Ct. at 1871, 40 L.Ed.2d at 436

(internal quotations omitted).

Regarding petitioner’s Eighth Amendment claim, the jury

“must be able to consider and give effect to any mitigating

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evidence relevant to a defendant’s background and character or

the circumstances of the crime.” Blystone v. Pennsylvania, 

494 U.S. 299, 304-305, 110 S.Ct. 1087, 1082, 108 L.Ed.2d 255, 263

(1990) (internal quotation omitted). 

The definition of preponderance of the evidence, which

immediately followed the definition of beyond a reasonable doubt,

conveyed that the defendant carried a lighter burden in proving

mitigating circumstances. The instruction made clear that a

preponderance of the evidence was a lesser burden by stating it

was in “contrast” to the beyond a reasonable doubt standard, and

that defendant “only” needed to establish the “greater weight” of

the evidence to prove mitigating circumstances.

Accordingly, petitioner has not established how the

instruction undermined the fundamental fairness of his trial in

violation of due process.

In addition, the state court holding was not contrary

to Eighth Amendment precedent. Petitioner has not established

how the trial court’s instruction on the burden of proof, which

adequately conveyed that a “preponderance” is a lesser burden

than beyond a reasonable doubt, limited the jury’s consideration

of mitigating circumstances. 

Finally, the Supreme Court of Pennsylvania’s holding

that trial counsel was not ineffective for failing to object to a

proper instruction was not an unreasonable application of Sixth

Amendment precedent. Petitioner did not establish the deficient

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performance prong under Strickland because the trial court did

not err. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

Accordingly, petitioner is not entitled to relief from

his death sentence because the instruction on preponderance of

the evidence given at the sentencing hearing was not

constitutionally deficient. Although petitioner is not entitled

to relief on the grounds he raised in claims three and seven, I

have nonetheless already granted petitioner the relief he was

seeking - a new sentencing hearing - on the grounds raised in

claim one.

Grave Risk Aggravating Factor

In claim four of his habeas petition petitioner raises

four discrete issues: (1) the trial court erred in defining the

grave risk aggravating factor identified in 42 Pa.C.S.A. 

§ 9711(d)(7); (2) the Commonwealth failed to provide petitioner

adequate notice of the grave risk aggravating factor; and 

(3) the trial court erred in admitting expert testimony relating

to a bullet ricochet theory to support the grave risk aggravating

factor. In addition, petitioner alleges (4) trial counsel was

ineffective for failing to object to these errors and was

ineffective for failing to rebut the expert testimony. 

Petitioner alleges all of these errors combined or any of them

individually entitle him to a new sentencing hearing.

As discussed in the section on Procedural Default and

the Relaxed Waiver Rule, supra, petitioner’s claims (1) and (2)

above, are procedurally defaulted because they were raised for

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the first time on PCRA appeal to the Supreme Court of

Pennsylvania, and their merits were not considered because of a

waiver holding. Accordingly, petitioner’s claims that (1) the

notice petitioner received regarding the grave risk aggravating

factor and (2) the instructions the trial court provided on the

grave risk aggravating factor were constitutionally deficient are

procedurally defaulted and cannot be considered on habeas review. 

See section on Cause and Prejudice, supra.

Trial Court Error

Petitioner fairly presented his claim for trial court

error (3) above, during PCRA review. Petitioner argues his

Fifth, Sixth, Eighth, and Fourteenth Amendment rights were

violated because the expert testimony of the Commonwealth’s

witness regarding the ricochet theory was speculative and

improper, and the trial court failed in its gatekeeping function

to exclude this evidence pursuant to Kumho Tire Company v.

Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999),

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 

113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923). Because the state court

did not address the merits of this portion of petitioner’s claim,

I consider this issue de novo. See Thomas, 570 F.3d at 113. 

At the sentencing hearing, the Commonwealth pursued as

an aggravating factor that “in the commission of the offense the

defendant knowingly created a grave risk of death to another

person in addition to the victim of the offense.” 

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42 Pa.C.S. § 9711(d)(7). As support for this factor, the

Commonwealth presented evidence that petitioner waved the gun at

other customers in the laundromat as he exited the building. The

Commonwealth also presented testimony from a firearms examiner

expert that the bullets from petitioner’s gun could have

ricocheted off of various objects in the laundromat. The expert,

Howard Montgomery, testified during the guilt phase as follows:

Q: Could you tell us what ricochet is?

A: A ricochet is a - basically, a projectile or a

bullet that would strike an object, a glancing

blow, and then ricochet from that object and take

a different direction off of a surface, this is

what we call a ricochet.

Q: And from your observations of the interior of

the [laundromat], was there surfaces in there that

ricochet was potentially capable?

A: Well, yes, many surfaces. You had metal

washing machines, you had one wall, you had metal

driers, big huge driers. A firearm discharged

randomly in this particular establishment, there

was a good chance of a ricochet bouncing off a

washing machine, off a wall, off a drier, going

out the front window, or striking someone in the

establishment at the time.105

Petitioner alleges this testimony was speculative

because it was not based on any scientific testing or experiment. 

Petitioner contends that because the Commonwealth moved to

incorporate all the trial evidence for the jury to consider

during the sentencing phase, and the trial court so instructed

the jury, the jury considered this speculative evidence in

Notes of Testimony of the jury trial conducted before The

105

Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas of

Chester County, Pennsylvania on October 25, 1994 (“N.T. October 25, 1994")

pages 367-368.

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finding the grave risk aggravating factor against petitioner.106

Therefore, petitioner argues the jury could not have properly

found the aggravating factor beyond a reasonable doubt, which

violates petitioner’s Eighth and Fourteenth Amendment rights.

Respondents contend habeas relief for improper

admission of evidence is only available where the use of the

evidence caused fundamental unfairness in violation of due

process. Lisenba v. California, 314 U.S. 219, 236, 

62 S.Ct. 280, 290, 86 L.Ed. 166, 180 (1941); Lesko v. Owens, 

881 F.2d 44, 52 (3d Cir. 1989). Because the evidence was

relevant to an issue in petitioner’s case, respondents aver

petitioner was not denied a right to a fair trial by its

admission.

Furthermore, respondents contend that the trial court

had no obligation to sua sponte preclude expert testimony absent

objection from opposing counsel. In addition, respondents argue

it was not error to not object to this testimony because the

testimony was commonsensical, and there was evidence that the

bullets had in fact fragmented and ricocheted in this case.

 Pennsylvania courts follow the test for admitting

expert evidence explained in Frye. See Grady v. Frito Lay, 

576 Pa. 546, 839 A.2d 1038 (Pa. 2003). Petitioner has not 107

cited to any authority for his assertion that the trial court had

N.T. October 28, 1994, pages 875-876 and 933.

106

Because Pennsylvania courts have not adopted the United States

107

Supreme Court’s analysis outlined in Daubert and Kumho Tire Company, supra, I

do not address petitioner’s claim in light of these standards.

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an obligation under Frye to sua sponte exclude expert testimony

because it was speculative absent objection from opposing

counsel. 

Furthermore, petitioner has not established that the

expert testimony was speculative. Petitioner contends that the

testimony was misleading because the shooting occurred in a back

room, out of view of other persons in the laundromat, which

therefore negates the risk of ricochet. However, at trial, the

Commonwealth presented evidence that petitioner had also waved

the gun at customers as he exited the laundromat. Had the gun

discharged at that time, the risk of a ricochet greatly

increased. 

Even in the section of the laundromat where the gun was

actually discharged, the risk of the bullet ricochet was not

speculative. In fact, there was evidence establishing that the

bullets had deflected off of the victim’s glasses, and that the

fragments from this bullet punctured holes through a wooden door,

a metal shelf, and a coffee can, and came to rest nineteen feet

from the victim’s body. Accordingly, the testimony was not 108

based on speculation, and, in fact, is commonsensical and not

unduly inflammatory.

Because the testimony is not speculative, I conclude

that its admission was not error and did not violate petitioner’s

Notes of Testimony of the jury trial conducted before The

108

Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas of

Chester County, Pennsylvania on October 24, 1994 (“N.T. October 24, 1994")

pages 299-300, 306 and 316; N.T. October 25, 1994, pages 344-345, 350-351, 372

and 380-382.

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constitutional rights. Accordingly, petitioner is not entitled

to relief from his death sentence on this ground. 

Ineffective Assistance of Counsel

In addition, petitioner claims trial counsel was

ineffective for failing to object to the expert testimony, and

subsequent counsel was ineffective for failing to raise the claim

on direct appeal. Because petitioner cannot establish that the

testimony was speculative, he also cannot establish deficient

performance for failing to object to the testimony. See

Strickland, supra. Therefore, petitioner is not entitled to

relief for his claims for ineffective assistance of counsel. 

Finally, petitioner argues trial defense counsel was

ineffective for failing to rebut the Commonwealth’s expert

regarding the ricochet theory. Specifically, petitioner alleges

trial defense counsel was ineffective for failing to call an

expert witness to refute the Commonwealth’s expert. Petitioner

alleges trial defense counsel’s decision not to call an expert

witness was not informed because he did not investigate what

possible expert witnesses would be available or possible ways to

refute the ricochet theory.

The Supreme Court of Pennsylvania addressed the merits

of petitioner’s claim on PCRA appeal. The Supreme Court held

that trial defense counsel was not ineffective for two reasons. 

First, petitioner’s claim had no merit because petitioner did not

establish that an expert witness existed who was available to

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give testimony rebutting the Commonwealth expert’s testimony on

bullet ricochet. Hall, 582 Pa. at 542, 872 A.2d at 1187. 

Furthermore, the Supreme Court held that trial defense

counsel had a reasonable strategy for failing to rebut the

ricochet theory. 582 Pa. at 542-543, 872 A.2d at 1187. During

the PCRA hearing, trial defense counsel testified that he

believed the Commonwealth expert’s testimony was a matter of

commonsense, and it would undercut his credibility with the jury

to argue that a gun randomly discharged in a laundromat did not

present the risk of a bullet ricocheting. Id. Accordingly, the

Supreme Court held that petitioner was unable to establish a

claim for trial defense counsel’s ineffectiveness. Id.

Because the Supreme Court of Pennsylvania has addressed

the merits of petitioner’s claim, the claim is subject to the

deferential standard of review under the AEDPA.

The Supreme Court of Pennsylvania decision is not

contrary to or an unreasonable application of United States

Supreme Court precedent. While petitioner is correct that trial

defense counsel admitted he did not investigate ways to refute

the Commonwealth expert witness’s testimony regarding bullet

ricochet, trial defense counsel’s decision not to investigate was

a reasonable strategic decision. 

Pursuant to Strickland, “strategic choices made after

less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the

limitations on investigation.” 466 U.S. at 690-691, 

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104 S.Ct. at 2066, 80 L.Ed.2d at 695. The United States Supreme

Court has held that counsel has a duty to make a reasonable

investigation or to make a reasonable decision that an

investigation would be unnecessary. 466 U.S. at 691, 

104 S.Ct. at 2066, 80 L.Ed.2d at 695. The decision not to

investigate must be assessed for reasonableness considering all

the circumstances, and counsel’s decision is entitled to “a heavy

measure of deference....” Id.

Trial defense counsel testified at the PCRA hearing

that he was arguing to the jury that petitioner did not have

specific intent to kill because the victim had control of the gun

at the time it was accidentally discharged. Because he was 109

arguing that the gun was essentially randomly discharged in the

laundromat, trial defense counsel testified it would have harmed

his credibility with the jury to argue that bullet ricochet

creating a grave risk of death to others in the laundromat was

not possible. He further testified that the concept of 110

ricochet was a matter of commonsense, and that it would not be

beneficial to his client to seek a ballistics expert to refute

this theory.111

The Supreme Court of Pennsylvania holding that trial

counsel’s strategic decision was entitled to deference does not

Notes of Testimony of the PCRA hearing conducted before The

109

Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas of

Chester County, Pennsylvania on July 13, 2000 (“N.T. July 13, 2000") pages 42-

45.

Id. at page 45.

110

Id. at pages 42-43.

111

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constitute an unreasonable application of Strickland. Because

trial defense counsel made a reasonable decision that further

investigation would be unnecessary, his performance was not

constitutionally deficient.

In petitioner’s habeas petition, he has produced a

letter from a potential ballistics expert who explained he would

have been available at the time of trial to testify. The

proposed expert explained in the letter that he would have

testified that both the isolated location where the gun was

discharged and the recovered ballistics evidence indicate that

the bullets were not likely to ricochet.112

Nonetheless, trial defense counsel’s decision not to

call a ballistics expert was a reasonable strategy, and even if

petitioner had called this proposed witness, petitioner cannot

establish he was prejudiced by trial defense counsel’s decision. 

Petitioner’s proposed expert does not actually rebut the

Commonwealth expert witness’s testimony. The proposed expert

testimony does not refute the ricochet theory insofar as it

applies to petitioner’s waving his gun at other customers as he

exited the laundromat. 

In addition, the proposed expert’s opinion that the

bullets were not likely to ricochet because they fragmented upon

hitting the victim’s glasses does not rebut the Commonwealth’s

evidence that the bullet fragments were dangerous. The

Commonwealth presented evidence that the bullet fragmented after

Letter Report of Lester Roane, Petitioner’s Appendix, Exhibit Q.

112

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hitting the victim’s glasses, and the bullet fragments went

through a metal shelf, a wooden door, and a coffee can, and the

fragments traveled nineteen feet from the victim’s body. The 113

bullet-fragmenting evidence is consistent with the Commonwealth

expert’s testimony, and it provides support for the grave risk

aggravating factor pursued by the Commonwealth. Accordingly,

petitioner cannot establish that he is prejudiced because the

proposed expert witness does not in fact refute the

Commonwealth’s evidence regarding the ricochet theory.

Although petitioner cannot establish that he is

entitled to a new sentencing hearing on the grounds raised in

claim four of petitioner’s habeas petition, petitioner has

already been granted the relief he seeks because I have

determined above that the errors raised in claim one warrant a

new sentencing hearing.

Proportionality Review

The twelfth claim in petitioner’s habeas petition

asserts that the proportionality review of petitioner’s death

sentence conducted by the Supreme Court of Pennsylvania violated

his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.

Specifically, petitioner contends that both the

procedure used by the Supreme Court of Pennsylvania in conducting

the proportionality review, and petitioner’s inability to

participate in this review, violated his constitutional rights.

N.T. October 24, 1994, pages 299-300, 306 and 316; N.T.

113

October 25, 1994, pages 344-345, 350-351, 372 and 380-382.

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At the time of petitioner’s trial, the Supreme Court of

Pennsylvania was required to conduct a review of every death

sentence to determine whether the penalty imposed was “excessive

or disproportionate to the penalty imposed in similar cases

considering both the circumstances of the crime and the character

and record of the defendant,” commonly referred to as

proportionality review. 42 Pa.C.S.A. § 9711(h)(3)(iii);

Commonwealth v. Conforti, 533 Pa. 530, 533, 626 A.2d 129, 130

(1993). The President Judges for each county are required to

update the Administrative Office of Pennsylvania Courts (“AOPC”)

with information pertaining to first degree murder convictions

which were or could have been prosecuted under 42 Pa.C.S.A. 

§ 9711. Commonwealth v. Frey, 504 Pa. 428, 443, 

475 A.2d 700, 707-708 (1984).

In this case, the Supreme Court of Pennsylvania

conducted a proportionality review on direct appeal and held that

petitioner’s sentence was not excessive or disproportionate. 

Hall, 549 Pa. at 307-308, 701 A.2d at 209-210. 

Petitioner alleges that the proportionality review must

include a factual comparison of the full range of aggravating and

mitigating circumstances of the defendant and the offense. 

Petitioner further alleges the comparison must include the entire

universe of death-eligible cases, including those cases

ultimately resulting in life sentences.

Petitioner contends that a defect in the AOPC database

on statistics does not include this information, thereby

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preventing a meaningful proportionality review. Petitioner

claims he was arbitrarily denied an entitlement of state law in

violation of his due process rights. Petitioner also alleges he

was denied his Eighth Amendment right to a reliable ultimate

determination of his sentence because he was denied a proper

proportionality review.

In addition to challenging the statistical method

generally, petitioner avers that in his case he had no notice or

opportunity to meaningfully participate in the Supreme Court of

Pennsylvania fact-finding concerning what constituted “similar

cases.” 

Finally, petitioner claims all prior counsel were

ineffective for failing to raise these errors.114

In his Petition for Writ of Habeas Corpus filed February 17, 2006

114

and Petitioner’s Memorandum of Law in Support of Petition for a Writ of Habeas

Corpus, which memorandum was filed October 6, 2006, petitioner alleges that

all of his state-court defense counsel from trial counsel through postconviction counsel were ineffective for not raising the issues contained in

claim twelve.

I note that by including “post-conviction counsel” in the laundry

list of prior counsel who were allegedly ineffective, it appears that current

counsel, Cristi A. Charpentier, Esquire, may be arguing her own ineffectiveness because she was one of the counsel that represented petitioner before the

Supreme Court of Pennsylvania on the last “post-conviction” proceedings in

state court.

While it is unclear if Attorney Charpentier is alleging her own

ineffectiveness for not raising the issues contained in claim twelve (she did

not bring these issues before the Supreme Court of Pennsylvania at the

earliest stage of the proceedings after her appearance in the case for

petitioner), I need not address the issue of a potential conflict of interest

in her further representation of petitioner because I conclude below that

claim twelve is procedurally defaulted, and therefore, do not address the

merits of claim twelve.

However, because I conclude that a new sentencing hearing is

appropriate in this matter, and in recognition of long-standing Pennsylvania

jurisprudence that requires the appointment of new counsel when an attorney

has raised his or her own ineffectiveness, this issue may need to be addressed

upon remand to the Pennsylvania trial court. See Commonwealth v. Green,

551 Pa. 88, 709 A.2d 382 (1998); Commonwealth v. McBee, 513 Pa. 255,

520 A.2d 10 (1986); Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978).

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Respondents contend that petitioner was not denied his

state-law entitlements because the Supreme Court of Pennsylvania

performed the statutorily mandated proportionality review. 

Because there is no constitutional right to proportionality

review, Respondents aver that petitioner is only entitled to

relief if he can show - which he cannot - that the

proportionality review was not undertaken in good faith. 

See Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 

111 L.Ed.2d 511 (1990). 

Further, respondents contend that petitioner’s claim

that he had no notice or opportunity to meaningfully participate

in the review is not exhausted because it was raised for the

first time in petitioner’s habeas petition. Respondents aver

that all ineffectiveness claims stemming from these errors are

also not exhausted because they are being raised for the first

time to this court.

Upon reviewing the record in this case, I conclude that

all of petitioner’s issues in claim twelve are raised for the

first time in petitioner’s habeas petition. Accordingly, I hold

that petitioner has failed to exhaust claim twelve in the state

courts.

Pursuant to Pennsylvania law, where the Supreme Court

of Pennsylvania has decided the merits of a claim on direct

appeal, it is considered “previously litigated” and cannot be

raised for PCRA review. 42 Pa.C.S.A. § 9544(a)(2). Ordinarily,

where the Supreme Court of Pennsylvania has conducted a

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proportionality review, issues pertaining to the proportionality

of a capital sentence are considered previously litigated. 

Commonwealth v. Brown, 582 Pa. 461, 491, 872 A.2d 1139, 1157 

(2005). 

However, the Supreme Court of Pennsylvania has

explicitly held that a challenge to the method of proportionality

review is not beyond the purview of the PCRA court because the

method itself is not the issue that was previously litigated. 

Id. 

Specifically, the appellant in Brown contended that the

“proportionality review utilized an inaccurate database without

providing Appellant’s counsel notice and an opportunity to

participate.” 582 Pa. at 492, 872 A.2d at 1157. The Supreme

Court held that the PCRA petition was the first opportunity

appellant had to raise these claims. 582 Pa. at 491-492, 

872 A.2d at 1157. 

Because petitioner raises identical challenges to the

proportionality review conducted in his case, he could have

raised these issues in the first instance to the PCRA court. In

addition, petitioner’s allegations of ineffective assistance of

counsel based upon these alleged errors also could have been

raised on PCRA review. Therefore, petitioner failed to exhaust

the state remedies available because he raised the claim for the

first time in his federal habeas petition.

Although petitioner failed to exhaust his state

remedies, he would be without a state corrective process if he

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were required to bring this claim in state court now. He would

be procedurally barred from obtaining state relief because his

claim would be deemed waived under the PCRA, pursuant to 

42 Pa.C.S.A. § 9544(b), and/or barred by the one year statute of

limitations under the PCRA, pursuant to 42 Pa.C.S.A. § 9545(b). 

See Werts, 228 F.3d at 193-194. Accordingly, although it would

be futile to require exhaustion, petitioner’s claim is

nonetheless not subject to habeas review because it is

procedurally defaulted. Id. at 194. 

Victim Impact Testimony

Petitioner contends in claim six of the habeas petition

that he is entitled to a new trial and a new sentencing hearing

because improper victim impact testimony was presented and argued

to the jury.

Specifically, petitioner alleges victim impact

statements were presented to the jury during the guilt phase by

both the prosecutor’s opening and closing statements and in the

testimony of five witnesses. Petitioner contends that he is 115

One witness testified that the victim “seemed like a real nice

115

guy.” N.T. October 24, 1994, page 56. Another witness testified that the

victim was “a nice person,” and a third witness testified that the victim “was

a real nice man.” N.T. October 24, 1994, pages 176, 203.

A fourth witness testified that her young daughter, who also

witnessed the crime, “had nightmares and she – her behavior was different from

before.” N.T. October 24, 1994, page 164. The victim’s employer testified

that the victim “was a good man, an honest man, a gentleman, and a man that

was recognized in the community and loved by everyone.” Notes of Testimony

of the jury trial conducted before The Honorable Paula Francisco Ott, former

Judge of the Court of Common Pleas of Chester County, Pennsylvania on

October 26, 1994 (N.T. October 26, 1994") page 589.

In the prosecutor’s opening statement, he referred to the victim

as a “father” and a “gentleman,” “who was well liked in the community,” and as

(Footnote 115 continued):

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entitled to a new trial because evidence concerning the victim is

irrelevant and inflammatory under Pennsylvania law, and its

admission violates petitioner’s due process rights. 

Petitioner alleges he is entitled to a new sentencing

hearing because victim impact testimony is neither relevant nor

admissible pursuant to the capital sentencing scheme under

Pennsylvania law, and its admission violated his Eighth and

Fourteenth Amendment rights. 

Petitioner also claims he is entitled to a new

sentencing hearing because the victim impact testimony

constituted invalid evidence for establishing aggravating

circumstances under Pennsylvania law, in violation of the Eighth

Amendment. Furthermore, although petitioner acknowledges that

victim impact evidence is not per se unconstitutional, petitioner

argues its use was extensive and repetitive, thereby violating

petitioner’s Eighth Amendment and due process rights.

Petitioner further contends that the trial court’s

failure to follow the dictates of Pennsylvania’s evidence law

(Continuation of footnote 115):

a “poor man” who “enjoyed working” in the laundromat. Notes of Testimony of

the jury trial conducted before The Honorable Paula Francisco Ott, former

Judge of the Court of Common Pleas of Chester County, Pennsylvania on

October 22, 1994 (“N.T. October 22, 1994") pages 18 and 25.

In the prosecutor’s closing argument, he remarked on the testimony

of the witness whose young daughter had also witnessed the murder: “She’s

having nightmares. And Kimberly is having nightmares about this, about this

because she knew Don Johnson, and she saw the puddle of blood.” Notes of

Testimony of the jury trial conducted before The Honorable Paula Francisco

Ott, former Judge of the Court of Common Pleas of Chester County, Pennsylvania

on October 27, 1994 (“N.T. October 27, 1994") page 797. Further, he commented

on the testimony of one of the other witnesses, explaining that the witness

“said he met Mr. Johnson for the first time that day, and he came away saying,

what a nice man he was.” N.T. October 27, 1994, page 794.

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violated his right to due process. In addition, petitioner

claims his due process rights were violated because he was not

given adequate pre-trial notice that the Commonwealth planned to

present victim impact evidence. 

Finally, petitioner claims he was denied effective

assistance of counsel because trial counsel failed to object to

the evidence, and direct appeal counsel failed to raise this

error.

PCRA Appeal

On PCRA appeal to the Supreme Court of Pennsylvania,

petitioner contended he was entitled to relief under the Eighth

and Fourteenth Amendments because the capital sentencing scheme

in effect at the time of his trial prohibited victim impact

evidence. Petitioner alleged that because such evidence was

presented during his sentencing hearing, the jury considered

improper aggravating evidence in returning a death sentence. 

Petitioner brought an ineffective assistance of counsel claim

under the Sixth Amendment for trial counsel’s failure to object

to this evidence, and all subsequent counsel for failing to raise

this error.

The Supreme Court of Pennsylvania considered the merits

of petitioner’s ineffective assistance of counsel claim and held

that while the capital sentencing scheme in effect at the time of

trial precluded victim impact evidence, the comments petitioner

identified do not constitute victim impact testimony. Hall, 

582 Pa. at 540, 872 A.2d at 1185. The Supreme Court held that

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such evidence must describe qualities of the victim and be

designed to show the uniqueness of the victim as an individual. 

Id. However, the Court held that the statements at issue were

generally unsolicited and were only made in passing. Id. 

The Court further held that even assuming that the

statements were victim impact testimony, “those references were

so isolated that none of them could be found to have affected the

outcome of the proceedings.” 582 Pa. at 540, 872 A.2d at 1186.

Finally, the Supreme Court held that the trial court

instructions explaining that the statements and questions of the

attorneys do not constitute evidence cured any possible prejudice

that may have been caused by the prosecutor’s remarks. 

582 Pa. at 541 n.7, 872 A.2d at 1186 n.7. Because there was no

prejudicial error, the Court held petitioner’s claims for

ineffective assistance of counsel must fail. 582 Pa. at 541, 

872 A.2d at 1186. 

Petitioner argues that the Supreme Court of

Pennsylvania did not address the merits of his constitutional

claims, but to the extent it did, it was an unreasonable

application of United States Supreme Court precedent because the

statements are victim impact evidence pursuant to Payne v.

Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)

and Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 

96 L.Ed.2d 440 (1987).

Respondents argue the Supreme Court of Pennsylvania

decision was not an unreasonable application of United States

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Supreme Court precedent because the statements were not victim

impact evidence. Respondents also contend that even if the

statements were victim impact evidence, their admission did not

violate petitioner’s due process rights.

Guilt Phase Claims

Regarding the admission of the statements at the guilt

phase of trial, petitioner contends that the trial court erred in

admitting the statements at issue because they were prejudicial

and inflammatory, thereby violating petitioner’s due process

rights. 

Petitioner raises this argument for the first time in

his habeas petition. Because petitioner failed to fairly present

his due process claim to the state courts, it has not been

properly exhausted. Petitioner’s claim is also procedurally

defaulted, thereby barring federal habeas review. See 

section on Procedural Default and the Relaxed Waiver Rule, supra. 

Sentencing Phase Claims

Regarding the admission of the statements at the

penalty phase of trial, petitioner contends the jury was

instructed to consider the guilt phase statements after the

Commonwealth successfully moved to incorporate the evidence put

forth at trial. Petitioner contends his due process and Eighth 116

Amendment rights were violated because Pennsylvania law prohibits

the admission of victim impact evidence at a capital sentencing

hearing.

N.T. October 28, 1994, pages 875-876 and 933.

116

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The deferential standard of review identified in the

AEDPA applies to petitioner’s ineffective assistance of counsel

claim. However, because the Supreme Court of Pennsylvania only

addressed the merits of petitioner’s ineffectiveness claim, I

consider the merits of the Eighth and Fourteenth Amendment claims

de novo.

Prior to the 1995 amendment to 42 Pa.C.S.A. 

§ 9711(a)(2), which explicitly made evidence concerning the

victim and the impact of his death on his family admissible,

victim impact evidence could not be introduced during the penalty

phase of a capital case. See Commonwealth v. Fisher, 

545 Pa. 233, 268, 681 A.2d 130, 147 (1996). 

The question of whether the statements at issue were

inadmissible because they constitute victim impact evidence under

Pennsylvania law is a question of state law. The United States

Supreme Court has made clear that federal habeas “relief does not

lie for errors of state law.” Estelle v. McGuire, 

502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385, 396 (1991)

(internal quotations omitted). 

In Estelle, the Supreme Court held that the United

States Court of Appeals for the Ninth Circuit had improperly

examined violations of state law governing the admission of

evidence on habeas review:

We first consider whether the admission of

the prior injury evidence [under California law]

justified habeas relief. In ruling that

[petitioner’s] due process rights were violated by

the admission of the evidence, the [United States]

Court of Appeals [for the Ninth Circuit] relied in

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part on its conclusion that the evidence was

"incorrectly admitted...pursuant to California

law." Such an inquiry, however, is no part of a

federal court's habeas review of a state

conviction.... Today, we reemphasize that it is

not the province of a federal habeas court to

reexamine state-court determinations on state-law

questions. In conducting habeas review, a federal

court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of

the United States.

502 U.S. at 67-68, 112 S.Ct. at 479-480, 116 L.Ed.2d at 396. 

Accordingly, the question for habeas review is whether

the admission of the statements at issue violated petitioner’s

constitutional rights. The Supreme Court has held that the

Eighth Amendment does not present a bar to victim impact evidence

at capital sentencing hearings, and states are free to devise

capital sentencing schemes and procedures that define and utilize

such evidence. Payne, 501 U.S. at 824-825, 111 S.Ct. at 2608,

115 L.Ed.2d at 735. The due process clause remains the outer

boundary for the admissibility of such evidence, and its

admission only rises to a constitutional violation where the

evidence is “so unduly prejudicial that it renders the trial

fundamentally unfair.” Payne, 501 U.S. at 825, 

111 S.Ct. at 2608, 115 L.Ed.2d at 735. 

Accordingly, petitioner is only entitled to habeas

relief if he can establish the admission of the statements at

issue deprived him of fundamental fairness in his trial. See

Bisaccia v. Attorney General, 623 F.2d 307, 312 (3d Cir. 1980);

see also Darden, 477 U.S. at 178-180, 106 S.Ct. at 2470-2471, 

91 L.Ed.2d at 156.

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In Payne, the United States Supreme Court held that

evidence regarding the two murder victims and the surviving

victim did not violate the defendant’s Eighth Amendment rights,

nor were they so unduly prejudicial that they violated the

defendant’s due process rights. 501 U.S. at 825-828, 

111 S.Ct. at 2608-2611, 115 L.Ed.2d at 735-739. 

The defendant murdered a woman and her young daughter,

while seriously injuring the woman’s young son, who survived the

incident. 501 U.S. at 812, 111 S.Ct. at 2602, 115 L.Ed.2d at

727. The prosecutor elicited testimony from the woman’s mother,

the grandmother of the surviving victim, and she explained in

detail how the boy cries for his mother and his sister and tells

her repeatedly how much he misses them and is worried about them. 

501 U.S. at 814-815, 111 S.Ct. at 2603, 115 L.Ed.2d at 728. 

The prosecutor’s closing argument explained in three

paragraphs how serious the surviving victim’s injuries were, and

how tragic the boy’s life will be without his mother and sister. 

501 U.S. at 815, 111 S.Ct. at 2603, 115 L.Ed.2d at 728-729. 

Further, in rebuttal to petitioner’s closing argument, the

prosecutor provided three more paragraphs of argument regarding

how the victims’ lives were cut short and describing how the

surviving victim had suffered a terrible loss. 501 U.S. at 815-

816, 111 S.Ct. at 2603, 115 L.Ed.2d at 729. 

Because the Supreme Court held that these extensive

statements in Payne regarding the victims were not so unduly

prejudicial as to render the trial unfair, the comparatively dry

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statements made in passing about the victim in this case

certainly do not rise to the level of a due process violation. 

Therefore, petitioner is not entitled to relief from his death

sentence on this ground. 

Regarding petitioner’s ineffective assistance of

counsel claim, the Supreme Court of Pennsylvania held that even

if the statements were victim impact evidence and trial counsel

should have objected to their admission, petitioner cannot

establish that he was prejudiced. 

Applying deferential review pursuant to the standards

identified by the AEDPA, the Supreme Court of Pennsylvania

decision was not contrary to, or an unreasonable application of,

Strickland. Pursuant to Strickland, petitioner can establish

prejudice by showing that there was a reasonable probability that

the result of the proceeding would have been different had

counsel’s performance not been deficient. 466 U.S. at 694, 

104 S.Ct. at 2068, 80 L.Ed.2d at 698. Because the statements

were isolated and brief, and because they were not highly

prejudicial, petitioner has not demonstrated how the reliability

of the proceedings was undermined by the admission of the

statements. Therefore, petitioner’s claims for ineffective

assistance of counsel must fail. 

Further, petitioner’s due process arguments that he was

entitled to advance notice before these statements were admitted

and that the trial court violated his rights by failing to adhere

to Pennsylvania law were raised for the first time in this habeas

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petition. Accordingly, they are unexhausted and are procedurally

defaulted. See section on Procedural Default and the Relaxed

Waiver Rule, supra.

Accordingly, petitioner’s claims for relief from his

conviction and death sentence based on the grounds raised in

claim six are denied. 

Guilt Phase Claims117

Prosecutorial Misconduct

Petitioner contends in claim five of the habeas

petition that he is entitled to a new trial and a new sentencing

hearing for numerous acts of prosecutorial misconduct. 

Petitioner claims the prosecutor made statements in

violation of his rights pursuant to the Fifth, Sixth, and

Fourteenth Amendments in his closing argument during the guilt

phase. In addition, petitioner alleges the prosecutor made

improper statements during his closing argument at the penalty

phase that violated his Sixth, Eighth, and Fourteenth Amendment

rights. He further alleges that trial counsel was ineffective to

the extent he failed to object to these statements, and that

direct appeal counsel was ineffective to the extent he failed to

raise these errors.

With respect to the alleged prosecutorial misconduct at

the sentencing hearing, petitioner first raised this claim on

PCRA appeal to the Supreme Court of Pennsylvania, which held that

Although some of the following claims also contain alleged errors

117

occurring during the sentencing phase, each claim primarily arises from

alleged errors committed during the guilt phase of petitioner’s trial.

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the claim was waived. See section on Procedural Default and the

Relaxed Waiver Rule, supra. Accordingly, petitioner’s claims for

prosecutorial misconduct at the sentencing hearing, and the

derivative ineffective assistance of counsel claims, are

procedurally defaulted.118

All of petitioner’s claims are raised for the first time in the

118

PCRA appeal. However, the facts underlying one claim had been previously

raised before the PCRA court.

In petitioner’s federal habeas petition, he argued that the

prosecutor misrepresented the law regarding the grave risk of death

aggravating circumstance. 42 Pa.C.S.A. § 9711(d)(7). Petitioner alleged his

Sixth, Eighth, and Fourteenth Amendment rights were violated because the

prosecutor argued to the jury at the penalty phase that the burden of proof to

find the aggravating circumstance was less than what was constitutionally

required.

Although petitioner had not previously raised this claim in his

PCRA petition, petitioner argued, through counsel, at the PCRA hearing that

trial counsel was ineffective for failing to object to the prosecutor’s

argument regarding the grave risk of death aggravating factor in

42 Pa.C.S.A. § 9711(d)(7). PCRA defense counsel argued that the prosecutor’s

closing argument was confusing because it suggested the jury’s conviction for

recklessly endangering another pursuant to 18 Pa.C.S.A. § 2705 at the guilt

phase required the jury to find the grave risk of death aggravating factor at

the penalty phase. N.T. July 13, 2000, pages 18-19. The PCRA court rejected

this argument and held the following:

We next consider a claim of Petitioner, not

specifically raised in the Petition, but addressed to

Mr. Miller at the PCRA hearing, that trial counsel was

ineffective for not objecting to the following statements of

the District Attorney in his penalty phase argument:

He killed, and he killed - he killed during that

robbery, and we have proven it to you, and you have

accepted that at the guilt or innocence phase. We

have proven to you that he did more than kill that

day, and you have accepted that, because you convicted

him as well of endangering other persons.

Petitioner contends that this argument confused the jury and

lead [sic] to the erroneous belief that a conviction on

recklessly endangering another” meant they must find the

aggravator of “grave risk of death to others than the

intended victim”. This Court recognizes that these are

related but distinct concepts, but does not see how this

single statement blurs the distinction. Therefore, trial

counsel was not ineffective for not objecting to or

responding to this portion of the Commonwealth’s argument.

(Footnote 118 continued):

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Regarding the alleged prosecutorial misconduct during

the guilt phase of petitioner’s trial, petitioner identifies

numerous statements in the prosecutor’s closing argument that he

contends violate his right to due process. Specifically,

petitioner contends his Fifth Amendment right to be free from

self-incrimination was violated when the prosecutor commented on

his failure to testify during his closing argument. Petitioner

additionally contends he was deprived of due process because the

prosecutor made inflammatory and prejudicial remarks during his

closing argument, including mentioning that the victim will not

see another Christmas, that petitioner had a “cold heart” and

would have killed anyone who tried to stop him when he left the

laundromat, and finally, that the jury should “send a message” by

finding petitioner guilty of first degree murder.

(Continuation of footnote 118):

Respondents’ Appendix BB, Commonwealth v. Hall, No. 29-94, at 6-7

(C.P. Chester Oct. 19, 2000) (Ott, J.)(citations omitted).

Petitioner argued for the first time on PCRA appeal to the Supreme

Court of Pennsylvania that the prosecutor’s argument deprived him of due

process in violation of his Sixth, Eighth, and Fourteenth Amendment rights.

The Supreme Court held it was waived.

Petitioner did not “fairly present” his federal issue to the PCRA

court because he did not reference any federal rights, he did not rely on any

federal cases, nor did he place the PCRA court on notice that he was asserting

a federal claim. See McCandless, 172 F.3d at 261. He did not brief the

issue, and instead he merely argued at the hearing that the prosecutor’s

statement was confusing and was “explosive”. N.T. July 13, 2000, pages 18-19

and 57.

The PCRA court’s Opinion evidences that petitioner did not present

a federal issue because the court focused on whether the jury was confused,

and did not discuss whether a federal right had been violated.

Accordingly, although similar facts were presented to the PCRA

court, petitioner’s habeas claim has not been exhausted and is procedurally

defaulted because petitioner’s federal claim was raised for the first time on

PCRA appeal, wherein the Supreme Court of Pennsylvania held it was waived.

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Exhaustion

Respondents argue petitioner’s claims for prosecutorial

misconduct are not exhausted because they were not fairly

presented to the state court on direct appeal. Respondents

contend the claims for prosecutorial misconduct were framed

solely as state-law violations, and consequently, the state

courts did not have a fair opportunity or adequate notice to

apply the controlling legal principles to the facts bearing upon

petitioner’s constitutional claims.

Respondents are correct that petitioner does not cite

federal authority in his direct appeal brief, nor does he mention

the words “due process” or the Fifth Amendment. However,

petitioner argues the state court did understand that petitioner

was raising a federal constitutional right, as evidenced by the

fact that the trial court’s Rule 1925(a) Opinion cited to

Commonwealth v. Crittenton, 326 Pa. 25, 191 A. 358 (1937). 

Although Crittenton does not explicitly mention due process,

petitioner argues it invokes the due process analysis established

by the United States Supreme Court in Berger v. United States,

295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). 

The relevant language in Crittenton for prosecutorial

misconduct claims, which also appears in petitioner’s direct

appeal brief, is as follows: 

Where, under all the circumstances of the case,

the verdict rendered is a just one, the language

of the prosecuting officer which will justify a

reversal may be such that its unavoidable effect

would be to prejudice the jury, forming in their

minds a fixed bias and hostility toward the

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defendant, so that they could not fairly weigh in

his behalf such circumstances of doubt,

extenuation or degree of guilt that may be present

in the case, and thus make them unable to render a

true verdict. 

326 Pa. at 31, 191 A. at 361 (internal quotation omitted). 

In Berger, the United States Supreme Court analyzed a

claim for prosecutorial misconduct by examining the probability

of prejudice to the accused from the cumulative effect of

improper prosecutorial actions. The Supreme Court held that

where the prosecutor engages in misconduct and fails to act

impartially, the proper inquiry is whether prejudice to the

accused is so highly probable that, unless evidence of guilt is

overwhelming, a new trial is necessary. Berger, 

295 U.S. at 88-89, 55 S.Ct. at 633, 79 L.Ed. at 1321. 

Petitioner argues that the state-law prosecutorial

misconduct claim is the “substantial equivalent” of a federal due

process claim. Therefore, petitioner argues his claim has been

fairly presented to the state courts even though it did not cite

“book and verse” to the federal constitution. Picard, 

404 U.S. at 278, 92 S.Ct. at 513, 30 L.Ed.2d at 445 (internal

quotations omitted).

The United States Supreme Court has explicitly declined

to address whether a claim is “fairly presented” when the state

and federal legal standards are identical, although the claim has

only been presented to the state courts as a state-law claim. 

Baldwin v. Reese, 541 U.S. 27, 33-34, 124 S.Ct. 1347, 1352, 

158 L.Ed.2d 64, 72 (2004); see also Tome v. Stickman, 

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167 Fed.Appx 320, 324 (3d Cir. 2006). While the Supreme Court

has made clear that “mere similarity” of state and federal claims

is insufficient to exhaust, language in Duncan suggests that

state-law claims that are “virtually identical” to federal claims

are likely to provide the state court an opportunity to “pass

upon and correct alleged violations of its prisoners’ federal

rights.” 513 U.S. at 365-366, 115 S.Ct. at 888, 

130 L.Ed.2d at 868 (internal quotations omitted). 

Third Circuit precedent has established that where the

state and federal claims have nearly identical legal standards,

the federal court will have received adequate notice of the legal

and factual substance of the claim when the state court applied

the same legal standard. See Nara v. Frank, 488 F.3d 187, 197-

198 (3d Cir. 2007); McCandless, 172 F.3d at 261; Evans v. Court

of Common Pleas, Delaware County, Pennsylvania, 

959 F.2d 1227, 1231 (3d Cir. 1992).

The relevant standard for prosecutorial misconduct on

habeas review is “whether the prosecutors' comments so infected

the trial with unfairness as to make the resulting conviction a

denial of due process." Darden v. Wainwright, 477 U.S. 168, 181,

106 S.Ct. 2464, 2471, 91 L.Ed.2d 144, 157 (1986) (internal

quotations omitted). The relevant state-law standard is whether,

despite the prosecutor’s improper comments, the jury was able to

“fairly weigh” the evidence and render a “just” and “true

verdict” without unfair “prejudice” to the defendant. 

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Crittenton, 326 Pa. at 31, 191 A. at 361 (internal quotation

omitted). 

Because the state-law inquiry requires virtually

identical analysis of whether the prosecutor’s conduct so

impaired the jury’s ability to render a fair and true verdict,

the claim was fairly presented to the state courts. 

Petitioner’s claim is distinguishable from Duncan,

wherein the United States Supreme Court held that “[i]f a habeas

petitioner wishes to claim that an evidentiary ruling at a state

court trial denied him the due process of law guaranteed by the

Fourteenth Amendment, he must say so, not only in federal court,

but in state court.” 513 U.S. at 366, 115 S.Ct. at 888, 

130 L.Ed.2d at 868. In that case, the respondent brought a

state-law evidentiary claim, and the state court analyzed the

claim under the state-law rules of evidence by deciding whether

the evidence was more prejudicial than probative. The state

court did not consider whether the evidentiary ruling was so

inflammatory as to prevent a fair trial, which is the proper

analysis under due process. 

Likewise, the United States Court of Appeals for the

Third Circuit, relying on Duncan, held that petitioner’s passing

references to a “fair trial” in his state court papers did not

fairly present his due process claim to the state courts. 

Keller v. Larkins, 251 F.3d 408 (3d Cir. 2001). In Keller, the

petitioner alleged a state-law claim that proof of uncharged bad

acts should have been excluded as more prejudicial than probative

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pursuant to state rules of evidence. The Third Circuit held that

petitioner’s federal habeas due process claim that the

evidentiary ruling undermined the fundamental fairness of the

entire trial had not been fairly presented to the state courts,

and so was not exhausted. Keller, 251 F.3d at 414-415. 

Here, petitioner did not merely make passing reference

to a fair trial in his direct appeal brief. Instead, the

substance of his prosecutorial misconduct claim involved an

analysis of whether the prosecutor’s statements had so prejudiced

the jury that he had been deprived of a fair and true verdict. 

Furthermore, both the trial court’s Rule 1925(a) Opinion and the

Supreme Court of Pennsylvania direct appeal Opinion considered

whether the prosecutor’s statements so prejudiced the jury that

petitioner was deprived of a fair trial. Petitioner and the

state courts cited state-law opinions wherein the analyses were

virtually identical to federal constitutional analyses of

prosecutorial misconduct in violation of due process.119

But see Dye v. Hofbauer, 546 U.S. 1, 126 S.Ct. 5, 163 L.Ed.2d 1

119

(2005), wherein the United States Supreme Court held that a petitioner had

fairly presented his due process claim based on prosecutorial misconduct where

he explicitly referenced the due process clause. In that case, petitioner’s

brief to the state court included the heading: “THE PROSECUTOR DENIED

DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL BY NUMEROUS INSTANCES OF

MISCONDUCT,” and the text of the brief cited to the Fifth and Fourteenth

Amendments, including numerous United States Supreme Court cases discussing

due process and prosecutorial misconduct.

While the petitioner in this case did much less to present his

federal claim to the state courts, Dye did not state that the petitioner’s

actions in that case constituted a floor to fairly presenting a due process

claim based on prosecutorial misconduct. Accordingly, I do not read Dye as

contradicting earlier Supreme Court precedent holding that a petitioner can

exhaust a claim without explicitly referencing his federal rights in his state

court papers. See, e.g., Picard, supra.

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Furthermore, petitioner’s allegation that the

prosecutor’s closing remarks violated his right to be free from

self-incrimination was fairly presented to the state courts in

his direct appeal brief. Although the brief did not explicitly

cite the Fifth Amendment, petitioner satisfied two of the four

ways of indirectly presenting a federal claim identified in

McCandless. 172 F.3d at 261. 

Petitioner’s direct appeal brief relied on a state case

that employed federal constitutional analysis in a like fact

situation. Petitioner cited Commonwealth v. Turner, 

499 Pa. 579, 582-583, 454 A.2d 537, 539-540 (1982), which

analyzed the risk of jurors interpreting a defendant’s exercise

of his Fifth Amendment privilege as an admission of guilt. 

In addition, petitioner’s direct appeal brief argued

that the prosecutor’s closing argument contained “impermissible

comment[s] concerning the Defendant’s failure to testify at the

trial.” The language used in petitioner’s brief “call[s] to 120

mind a specific right protected by the Constitution,” namely, the

Fifth Amendment right against self-incrimination, thereby fairly

presenting the federal issue to the state court. McCandless, 

172 F.3d at 261 (internal quotation omitted).

The Supreme Court of Pennsylvania decision here

evidences that petitioner fairly presented his federal claim. 

The Court addressed the claim as the prosecutor’s improper

Respondents’ Appendix V, Brief and Appendix for Appellant, page

120

16.

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comments on defendant’s refusal to testify in violation of “the

privilege against self-incrimination and the defendant’s

constitutional presumption of innocence.” Hall, 549 Pa. at 287, 

701 A.2d at 199. 

Accordingly, petitioner has exhausted his claim of

prosecutorial misconduct arising from the prosecutor’s closing

argument at the guilt phase.

Fifth Amendment Right Against Self-Incrimination

Turning to the merits of petitioner’s claim, he

contends the prosecutor’s closing argument adversely commented on

petitioner’s failure to testify:

What did we prove here? What did we prove

here? I am going to go over the evidence briefly,

and then make some inferences to prove the

specific intent to kill, especially in homicides,

when there is normally two witnesses to the

incident, to the murder. The defendant, he

certainly witnessed it, he was right there, and

Mr. Johnson, who can’t speak. He’s forever

silenced. He won’t see another Christmas.121

Petitioner alleges that this passage urges the jury to view

petitioner as a possible witness who refused to testify, and then

to use this silence against him to find specific intent to kill.

A defendant’s Fifth Amendment right to be free from

self-incrimination has been violated where “the language was of

such character that the jury would naturally and necessarily take

it to be a comment on the failure of the accused to testify.” 

Untied States v. Brennan, 326 F.3d 176, 187 (3d Cir. 2003)

(internal quotation omitted). Statements merely regarding the

N.T. October 27, 1994, page 788.

121

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absence of facts in the record do not necessarily comment on a

defendant’s failure to testify. Id. “Where the prosecutor on

his own initiative asks the jury to draw an adverse inference

from a defendant’s silence,” a defendant’s privilege against

compulsory self-incrimination is violated. United States v.

Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 869, 99 L.Ed.2d 23, 31

(1988).

The Supreme Court of Pennsylvania considered

petitioner’s claim on direct appeal and held that the

prosecutor’s remarks did not adversely comment on petitioner’s

failure to testify. Hall, 549 Pa. at 287, 701 A.2d at 199. The

Supreme Court held the prosecutor’s comment instead explained the

difficulty of proving specific intent, and it indicated that such

intent needed to be inferred from the facts and circumstances

surrounding the victim’s death. Id. Furthermore, the Court held

any possible prejudice had been cured by the trial court’s

instruction that petitioner had a constitutional right not to

testify and that the jury could draw no adverse inference from

his decision to exercise that right. Id.

Applying the deferential standard established by the

AEDPA, I hold that the Supreme Court of Pennsylvania decision was

not contrary to or an unreasonable application of United States

Supreme Court precedent. 

Petitioner’s arguments regarding the unconstitutional

effect of the prosecutor’s comments are unpersuasive. It is not

clear that the prosecutor’s words even reference petitioner’s

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decision not to testify, but the comments certainly do not ask

the jury to draw an adverse inference from petitioner’s failure

to testify. Because these comments did not violate petitioner’s

Fifth Amendment rights, it was not error for trial counsel to

fail to object to them. See Strickland, supra. Accordingly,

petitioner is not entitled to relief from his conviction on this

ground.

Prejudicial and Inflammatory Statements in Violation of Due

Process

Petitioner also contends the prosecutor’s remark that

the victim would not “see another Christmas” was an improper

effort to garner sympathy from the jury. Similarly, petitioner

claims it was constitutional error for the prosecutor to state

that “the only thing colder than the grave of Mr. Johnson, is

this guy’s heart.” 

122

Petitioner avers the prosecutor was similarly inflaming

the passions of the jury with his remark that petitioner “would

have killed anyone else that tried to stop him when he left that

store.” Finally, petitioner contends the following statement 123

by the prosecutor appealed to “prejudice among white suburban

jurors against inner city African-Americans” : “I would ask you 124

to send a message, and that is you come out here from

Philadelphia, as we have proven, and shoot someone like this

N.T. October 27, 1994, page 801.

122

N.T. October 27, 1994, page 798.

123

Petitioner’s Memorandum, page 59 n.31.

124

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Defendant did, once in the face and once in the back of the head,

you are guilty of first degree murder.”125

The Supreme Court of Pennsylvania addressed most of

petitioner’s claims on direct appeal, and held that these

statements did not undermine petitioner’s right to a fair trial. 

The court held that the reference to Christmas was a fair

response to one of the reasons offered by petitioner to explain

his motive for committing the crime, which was to obtain money to

buy Christmas presents. Hall, 549 Pa. at 288, 701 A.2d at 199. 

Regarding the prosecutor’s statements about

petitioner’s “cold” heart, the Court held these remarks were

appropriate in reference to proving malice for first degree

murder. 549 Pa. at 289-290, 701 A.2d at 199. The Court

concluded the prosecutor drew a reasonable inference from the

evidence concerning petitioner’s state of mind during the

killing. Id. 

Finally, the Supreme Court held that the prosecutor’s

“send a message” statement was accurately based on the evidence

and provided a short synopsis of the crime, and that it did not

ask the jury to convict petitioner simply because he was from

Philadelphia. 549 Pa. at 294-295, 701 A.2d at 203. The Court

further noted that, although proper in this case, parties should

abstain from such exhortations in the future because of the risk

that jurors will ignore their duty to decide the case based on

N.T. October 27, 1994, page 801.

125

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the facts properly before them. 549 Pa. at 295, 701 A.2d at 126

203. The Court did not address the merits of the “he would have

killed anyone else” statement.

Applying the deferential standard of review to the

three statements at issue discussed above, the petitioner is not

entitled to relief from his conviction. On habeas review,

prosecutorial misconduct warrants relief only where the actions

undermined the fundamental fairness of the trial in violation of

due process, thereby depriving petitioner of a fair trial. 

Darden, 477 U.S. at 178-179, 106 S.Ct. at 2470-2471, 

91 L.Ed.2d at 156; Donnelly, 416 U.S. at 643-643, 

94 S.Ct. at 1871, 40 L.Ed.2d at 436-437. The Supreme Court of

Pennsylvania’s decision was not contrary to or an unreasonable

application of the due process precedent regarding prosecutorial

Petitioner argued that a subsequent Supreme Court of Pennsylvania

126

decision, Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102 (2004), showed

that the decision in Hall was an unreasonable application of United States

Supreme Court precedent.

The Supreme Court of Pennsylvania in DeJesus held that it would be

reversible error for a prosecutor to ask the jury to “send a message” with a

sentence of death during the sentencing phase. 580 Pa. at 330,

860 A.2d at 118-119.

In this case, the prosecutor’s statements arose during the guilt

phase, whereas DeJesus only addressed the penalty phase. In addition, the

comments were strictly tied to the facts in the case and did not ask the jury

to violate their sworn duty. The statement did not urge the jury to convict

petitioner based on prejudicial factors unrelated to the facts presented at

trial. Furthermore, the statement refers back to a theme in the prosecutor’s

closing argument that petitioner “sent a message” of “death” by directly

firing a bullet at the victim’s head. See N.T. October 27, 1994, page 800.

Also, petitioner’s reliance on Viereck v. United States,

318 U.S. 236, 248, 63 S.Ct. 561, 566-567, 87 L.Ed. 734, 741 (1943), wherein

the prosecutor encouraged the jury to fight a war with their verdict, is

inapposite. Accordingly, I conclude that the Supreme Court of Pennsylvania’s

decision in this matter was not an unreasonable application of United States

Supreme Court precedent.

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misconduct because none of the prosecutor’s statements rose to

the level of denying petitioner a fair trial.

After reviewing petitioner’s due process claim based on

the prosecutor’s statement that petitioner “would have killed

anyone else that tried to stop him when he left that store”, de

novo, I further conclude that petitioner is also not entitled to

relief from his conviction. 

As the United States Supreme Court has held, “habeas

relief is not available simply because the prosecutor's remarks

were undesirable or even universally condemned.” Darden, 

477 U.S. at 181, 106 S.Ct. at 2471, 91 L.Ed.2d at 157 (internal

quotations omitted). 

The prosecutor’s statement relies on an inference drawn

from the fact that the petitioner waved his gun at other patrons

as he exited the laundromat. While petitioner may argue that

this inference extends beyond what the evidence regarding his

state of mind reasonably showed, it certainly did not undermine

the fundamental fairness of petitioner’s trial. Petitioner’s

conviction was based on ample evidence that he intentionally

robbed and shot the victim, and this isolated statement did not

deprive petitioner of a fair trial. 

Petitioner is also not entitled to any relief for his

ineffective assistance of counsel claims because counsel could

not have been deficient for failing to object where there was no

error. See Strickland, supra.

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Accordingly, petitioner is neither entitled to relief

from his conviction nor his death sentence from any of the issues

raised in claim five. 

Failure to Present Exculpatory Statement of Co-Defendant

The eighth claim raised in petitioner’s habeas petition

alleges that trial counsel failed to present exculpatory evidence

in violation of petitioner’s Sixth, Eighth, and Fourteenth

Amendment rights, thereby entitling petitioner to a new trial and

sentencing hearing.

Prior to petitioner’s trial, Tyrone Green, a 

co-defendant, gave a statement to a detective regarding his

involvement in the crime. The statement established that 

Mr. Green intended to help petitioner rob the victim by guarding

the door of the laundromat. However, Mr. Green stated that he

was not an eyewitness to the actual firing of the shots. The

relevant portion of the statement is as follows:

Darrick and I entered the cleaners, and I stood at

the door at the rear of the cleaners. I watched

Darrick approach the counter where the man was. I

saw them wrestle over Darrick’s gun. I could not

hear what they were saying.... While they were

fighting over the gun, a black male tried to run

out the door. I stood in the doorway and

displayed my .22 caliber revolver to him and told

him to stop running.... When I saw Darrick Hall

and the guy wrestling with Darrick[’]s gun I got

scared and ran out the door. As soon as I left

the cleaners, I heard two shots from inside. I

was on the side-walk in front of the cleaners when

the shots were fired, I was not inside. I ran to

my car where Troy was waiting for us.127

Respondents’ Appendix HH, page 5.

127

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In addition, Mr. Green described the first time he

learned that petitioner had shot the victim:

I first realized Darrick shot the guy when he told

me when he got in the car. It all happen [sic] so

fast. I asked Darrick what the gun shots were. 

Darrick said I shot the guy. I told him he just

should have ran [sic].128

Petitioner contends that the confession confirmed the

defense theory that the gun accidentally was discharged during a

struggle. Petitioner first alleges that the co-defendant’s

statement would have been admissible as a declaration against

penal interest, which is an exception to the hearsay rule. See 129

Pa.R.E. 804(b)(3). 

Petitioner alternatively contends that even if the

statement were not admissible under the hearsay exception, it

would be admissible nonetheless because petitioner is guaranteed

the right to be heard and present a complete defense to the

charges against him under the due process, compulsory process,

and confrontation clauses of the United States Constitution. 

U.S.Const. amends V, VI and XIV, § 1; See, e.g., Crane v.

Kentucky,476 U.S. 683, 690-691, 106 S.Ct. 2142, 2146-2147, 

90 L.Ed.2d 636, 645 (1986); Chambers v. Mississippi, 

410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

Respondents’ Appendix HH, pages 5-6.

128

Petitioner’s Memorandum of Law in Support of Petition for a Writ

129

of Habeas Corpus, page 79. Petitioner assumes that the co-defendant would

have been rendered “unavailable” to testify because he would have asserted his

Fifth Amendment privilege because he was still awaiting trial while

petitioner’s trial was pending.

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Finally, petitioner avers that trial counsel was

ineffective for failing to offer this statement into evidence

because it supported petitioner’s defense. Petitioner claims he

was prejudiced by this failure because the jury would have

accorded more weight to the mitigating factor it found that the

“events leading up to the fatal shot includ[ed] the possibility

of a struggle.” Petitioner claims the jury would not have found

the struggle to be only a “possibility” in light of this

evidence. Petitioner further alleges that all subsequent counsel

were ineffective for failing to raise trial counsel’s error.

The Supreme Court of Pennsylvania considered this claim

during petitioner’s PCRA appeal. The court did not decide

whether the statement was admissible. The court held that even

assuming the co-defendant’s statement was admissible, petitioner

could not establish his ineffective assistance of counsel claim

because he was not prejudiced by the error. Hall, 

582 Pa. at 539, 872 A.2d at 1185. 

At the guilt phase, the Supreme Court held the

statement was not necessarily exculpatory because Mr. Green had

not witnessed the shots. 582 Pa. at 539, 872 A.2d at 1184. At

the penalty phase, the Court held that petitioner had not

established how the statement would have altered the jury’s

consideration of the mitigating factor it already found,

especially because Mr. Green admitted he had not been present

when the fatal shot was fired. 582 Pa. at 539, 872 A.2d at 1184-

1185. Therefore, the state Supreme Court held that petitioner

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did not establish how he was prejudiced by the omission of Mr.

Green’s statement, and that the ineffective assistance of counsel

claim was without merit. 582 Pa. at 539, 872 A.2d at 1185. 

Petitioner claims the Supreme Court of Pennsylvania’s

decision is unreasonable because Mr. Green’s statement

established that he witnessed the struggle for the gun until just

moments before the shots were fired. Petitioner argues that the

Supreme Court “ignored a critical portion of Mr. Green’s

statement” because it “failed to consider” that Mr. Green saw

petitioner and the victim struggling and then heard the shots “as

soon as” he left the laundromat. Because Mr. Green witnessed 130

the struggle “right up to the point the shots were fired,”

petitioner argues that the Green statement constitutes “strong

verifying circumstantial evidence that the shooting was the

result of a struggle.”131

Respondents argue that the Supreme Court of

Pennsylvania’s decision was not an unreasonable application of

clearly established United States Supreme Court precedent because

petitioner failed to establish how he had been prejudiced from

trial counsel’s failure to admit this statement. Respondents

claim that it was conceded at trial that some type of struggle

occurred prior to the actual shooting. To the extent that

petitioner’s claim is based on the admissibility of Mr. Green’s

Petitioner’s Memorandum, page 82.

130

Id.

131

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statement, respondents contend this is a question of state law

and does not raise a federal question for habeas corpus review. 

Alternatively, respondents argue that Mr. Green’s

statement is not admissible under the declaration against penal

interest hearsay exception because exculpatory portions of a

statement are not included in the exception. See Commonwealth v.

Brinkley, 505 Pa. 442, 453-454, 480 A.2d 980, 986 (1984). In

addition, due process does not require the admission of 

Mr. Green’s statement because Chambers, supra, is distinguishable

from this case.

Applying the AEDPA deferential standard of review, I

hold that the Supreme Court of Pennsylvania decision is not

contrary to, or an unreasonable application of, United States

Supreme Court precedent in Strickland. 

Petitioner is unable to establish that there is a

reasonable probability that the outcome of the proceeding would

have been different had Mr. Green’s statement been admitted. 

Under Strickland, where petitioner has failed to establish

prejudice, the court need not consider whether trial counsel’s

performance was deficient. 466 U.S. at 697, 104 S.Ct. at 2069, 

80 L.Ed.2d at 699. 

The primary question at trial was whether petitioner

fired the shots, particularly the fatal shot, with specific

intent to kill. The prosecution concedes, and the evidence it 132

presented supports the conclusion, that petitioner and the victim

See N.T. October 22, 1994, pages 28-29 and 32.

132

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engaged in some type of struggle preceding the first shot. For

example, the Commonwealth’s expert witnesses acknowledged that

the victim’s hands were on the muzzle of the gun at some point.133

Furthermore, the prosecutor’s closing argument claims that the

victim “pushed” the gun because he “instinctively tried to save

his life.” 

134

The linchpin issue was what happened when the gun was

actually discharged, particularly with respect to the fatal shot,

which the Commonwealth argued was the second shot fired. 

Mr. Green’s statement does not address the critical moment

because he admits that he had already run out of the laundromat

at the time the shots were fired. 

Petitioner claims that Mr. Green’s statement supports

the defense’s theory that the shooting was an accident and the

result of a struggle. However, the statement sheds no light on

the mens rea of petitioner, and further, it potentially leads to

the inference that the shooting was not an accident. 

Contrary to petitioner’s assertions, Mr. Green’s

statement only addresses the actual shooting after it had

occurred. Mr. Green claimed he asked petitioner what the shots

were after petitioner had already exited the laundromat, and he

alleged that petitioner said “I shot the guy.” Mr. Green’s 135

statement makes no mention of an accidental shooting, and it does

N.T. October 25, 1994, pages 373, 408-409.

133

N.T. October 27, 1994, pages 792 and 799.

134

Respondents’ Appendix HH, page 6.

135

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not connect the earlier struggle to the crucial moment when the

gun was discharged.

The statement does not in fact contradict the

Commonwealth theory that petitioner fired the shots with specific

intent to kill, and therefore petitioner has failed to establish

prejudice from trial counsel’s failure to admit it at trial. In

addition, Mr. Green’s statement merely supports the mitigating

factor that the jury already found: “events leading up to the

fatal shot including the possibility of a struggle.” Therefore,

petitioner has also failed to show prejudice at the sentencing

hearing. 

Accordingly, the decision of the Supreme Court of

Pennsylvania that the result of the guilt and sentencing phases

would not have been different even if Mr. Green’s statement had

been admitted, was not unreasonable. Thus, petitioner is not

entitled to a new trial or a new sentencing hearing based upon

these alleged errors. 

Failure to Move In Limine to Redact Petitioner’s Confession

The ninth claim raised in petitioner’s habeas corpus

petition alleges that trial counsel was ineffective for failing

to move in limine to redact petitioner’s confession, because the

statement referred to the victim as “white guy” ten times. 

Petitioner claims subsequent counsel was ineffective for failing

to raise this error on direct appeal. Petitioner alleges that he

is entitled to a new trial and a new sentencing hearing because

his Sixth, Eighth, and Fourteenth Amendment rights were violated.

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Following petitioner’s arrest, he provided the Chester

County Detectives with a statement regarding his involvement in

the crime. In that statement, which was read to the jury at

trial, petitioner referred to the victim as “white guy.” The 136

trial court instructed the jury to consider the evidence

presented at trial during the sentencing hearing.137

Petitioner contends that references to the victim’s

race were irrelevant, inflammatory, and prejudicial. Petitioner

argues that trial defense counsel explicitly recognized the

potential for racial bias in this case during pre-trial

proceedings, and that he had no strategic reason for failing to 138

redact the statement. Because the United States Supreme Court

acknowledged that there is a “unique opportunity for racial

prejudice to operate but remain undetected” in capital cases,

petitioner alleges that trial defense counsel was ineffective for

failing to move to redact the references to the victim’s race in

petitioner’s statement. Turner v. Murray, 476 U.S. 28, 35, 

106 S.Ct. 1683, 1687, 90 L.Ed.2d 27, 35 (1986).

Respondents contend that it was not error for trial

defense counsel to allow the phrase into evidence. Respondents

aver that race was not a central issue in the case. Respondents

argue that the jury already knew the race of the victim from

N.T. October 26, 1994, pages 542-552.

136

N.T. October 28, 1994, pages 875-876 and 933.

137

Notes of Testimony of the pre-trial hearing conducted before The

138

Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas of

Chester County, Pennsylvania on July 7, 1994 (“N.T. July 7, 1994") pages 10-

11.

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autopsy photographs, and that the trial court had already

conducted voir dire with the jury on the subject of racial

prejudice. 

Furthermore, respondents aver that the phrase was

relevant because it was important for the jury to hear the exact

words of petitioner in order to decide the appropriate weight to

accord the statement. Finally, to the extent petitioner is

making a claim for an evidentiary error, the proper standard of

review is whether the evidence rendered the trial fundamentally

unfair in violation of due process, which respondents claim it

had not.

The Supreme Court of Pennsylvania addressed the merits

of petitioner’s claim on PCRA appeal and held that even assuming

deficient performance, petitioner had not established prejudice

from trial defense counsel’s error. Hall, 582 Pa. at 541, 

872 A.2d at 1186. 

The Supreme Court of Pennsylvania explained that in

Turner, the United States Supreme Court held that a defendant is

allowed to question potential jurors regarding racial bias in a

capital case when the defendant and victim are of different

races. Id. In this case, trial defense counsel had in fact

conducted voir dire of the jury on the issue of racial bias. Id. 

Therefore, the Court held that petitioner could not establish

prejudice because the jury had already been questioned on their

racial attitudes in compliance with Turner. Id.

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Petitioner contends that the Supreme Court of

Pennsylvania’s decision failed to address the merits of his

actual Sixth Amendment claim. Petitioner claims that regardless

of whether the jury had been questioned on the issue of racial

bias, he is challenging trial defense counsel’s stewardship of

the evidence. Petitioner claims that Turner is irrelevant

regarding what evidence should be introduced in an interracial

capital case. Instead, he argues that his actual claim is that

trial defense counsel was ineffective for failing to move to

exclude irrelevant and racially inflammatory evidence. 

Therefore, petitioner alleges that his claim is subject to de

novo review.

Alternatively, petitioner contends that if I find the

merits of his claim to have been addressed, the decision of the

Supreme Court of Pennsylvania’s was unreasonable.

Because it is unclear from the face of the state court

decision whether the merits of petitioner’s constitutional claims

were addressed in light of federal law, I will address

petitioner’s claim de novo. Jacobs, 395 F.3d at 100 (internal

quotations omitted). 

It should be noted that while petitioner claims that

the central holding in Turner is irrelevant to his actual Sixth

Amendment claim, it remains unclear why he cited Turner in his

PCRA appeal brief and his federal habeas corpus petition. Turner

is the only case which he cites to support his claim. 

Nonetheless, petitioner’s true claim appears to challenge only

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trial defense counsel’s decision not to seek to exclude

potentially inflammatory and prejudicial evidence.

As discussed above, a claim of ineffectiveness of trial

defense counsel requires petitioner to prove that he was

prejudiced by his counsel’s deficient performance. The court

must examine the “totality of the evidence” to determine whether

petitioner has established prejudice. Strickland, 466 U.S. at

695, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. The United States

Supreme Court has provided the following guidance for considering

the prejudicial effect of an error:

Some errors will have had a pervasive effect on

the inferences to be drawn from the evidence,

altering the entire evidentiary picture, and some

will have had an isolated, trivial effect. 

Moreover, a verdict or conclusion only weakly

supported by the record is more likely to have

been affected by errors than one with overwhelming

record support. Taking the unaffected findings as

a given, and taking due account of the effect of

the errors on the remaining findings, a court

making the prejudice inquiry must ask if the

defendant has met the burden of showing that the

decision reached would reasonably likely have been

different absent the errors.

Strickland, 466 U.S. at 695-696, 104 S.Ct. at 2069, 

80 L.Ed.2d at 698-699. 

Petitioner alleges that the reference in his confession

to the victim as “white guy” was “unnecessarily inflammatory and

could arouse race-based fear in both white and black jurors.”139

However, petitioner must establish that the result reached by the

Petitioner’s Reply to Commonwealth’s Memorandum of Law in Support

139

of Commonwealth’s Answer to Petitioner for a Writ of Habeas Corpus, page 32.

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jury would reasonably likely have been different absent the

admission of this phrase. 

It is unclear that the phrase “white guy” necessarily

is racially inflammatory or prejudicial. Even assuming that the

phrase is inflammatory, its use was confined to the direct and

cross-examination of the detective who recorded petitioner’s

confession. The phrase was not used by the prosecution to

support an inference that petitioner had a race-based reason for

the robbery and murder. Moreover, there is no evidence, nor did

either side argue, that petitioner’s crimes were racially

motivated. 

Furthermore, during the cross-examination of the

detective, trial defense counsel potentially undermined its

prejudicial effect by creating doubts about the accuracy of the

statement. Trial defense counsel established that the statement

incorrectly listed the time it had been taken. He further 140

established that the words not in quotation marks were only the

detective’s summary of what petitioner had told him, and that the

phrase “white guy” had not been in quotation marks in the

statement. Although the detective contended that the phrase 141

was nonetheless not his phrase, trial defense counsel had already

established that the statement was not wholly reliable and

accurate.

N.T. October 25, 1994, page 570.

140

Id. at pages 566-572.

141

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Petitioner is unable to establish that there is a

reasonable probability that the result of the proceedings would

have been different had the phrase been excluded. Pursuant to

Strickland, the phrase likely had an isolated, trivial effect on

the trial, instead of a pervasive effect that would have altered

the entire evidentiary picture. Because the record strongly

supports the verdict, the passing references to petitioner’s

description of the victim as “white guy” hardly were prejudicial

enough to undermine confidence in the proceedings. 

Petitioner has not articulated the basis for the

alleged violation of his Eighth and Fourteenth Amendment rights. 

Petitioner fails to even mention these issues in his memorandum

of law. Accordingly, because he has not adequately briefed these

alleged constitutional violations, I decline to address them. 

See State Farm Mutual Automobile Insurance Co., 715 F.Supp.2d at

630 n.6. 

Therefore, I conclude petitioner is not entitled to a

new trial on this claim. Because it is similarly unclear how the

jury’s consideration of mitigating and aggravating circumstances

would have been altered, petitioner is not entitled to a new

sentencing hearing on this ground. 

Sufficiency of the Evidence

 The tenth claim raised in petitioner’s habeas corpus

petition alleges that petitioner is entitled to a new trial and

sentencing hearing because his due process rights were violated

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where the evidence was not sufficient to sustain a conviction for

murder of the first degree.

Specifically, petitioner alleges that his due process

rights were violated because the Commonwealth presented evidence

that a struggle before the shooting occurred, and that the

Commonwealth had no evidence of specific intent to kill. 

Petitioner alleges that because all the evidence was consistent

with defendant’s and co-defendant’s statements that the shooting

was an accident, he could not have been convicted beyond a

reasonable doubt, which violates his due process rights pursuant

to Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781,

2788-2789, 61 L.Ed.2d 560, 573-574 (1979). 

Exhaustion

Respondents contend petitioner did not exhaust this

sufficiency-of-the-evidence claim because he did not “fairly

present” his due process claim to the state courts. Instead,

petitioner raised this claim on direct appeal as a state-law

claim challenging the sufficiency of the evidence. Therefore,

respondents argue, the state courts did not have a fair

opportunity to address petitioner’s federal due process claim.

As noted by the Third Circuit, the test for sufficiency

of the evidence is the same under both Pennsylvania law and

federal due process. Evans, 959 F.2d at 1232. Both require the

court to examine whether any rational trier of fact could have

found that every element of the crime was proven beyond a

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reasonable doubt. See Jackson, supra; Commonwealth v. Ratsamy,

594 Pa. 176, 181 n.2, 934 A.2d 1233, 1236 n.2 (2007). 

In Evans, the Third Circuit held that petitioner fairly

presented his due process claim even though he had only raised

the claim in terms of sufficiency of the evidence in state court. 

959 F.2d at 1231-1233. A claim for sufficiency of the evidence

is the “substantial equivalent” of a federal due process claim. 

Id. at 1233. In addition, the Third Circuit in Evans held that a

petitioner’s due process claim had also been exhausted because

the assertion of the state-law claim “call[s] to mind a specific

right protected by the Constitution.” Id.; see also McCandless,

supra. 

In this case, petitioner’s brief in support of his

direct appeal cites the identical due process standard identified

in Jackson, which is “whether, viewing all the evidence in the

light most favorable to the Commonwealth as verdict winner, a

jury could find every element of a crime beyond a reasonable

doubt.” Because the standard is identical, “[n]either federal- 142

state comity nor judicial economy would be better served by

requiring [petitioner] to return to the state courts simply

because [his state court briefs] do not include a ‘see also’

citation to Jackson v. Virginia.” Johnson v. Mechling, 

541 F.Supp.2d 651, 665 (M.D.Pa. 2008) (Jones, III., J.). 

Respondents’ Appendix V, Brief and Appendix for Appellant, page

142

11.

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Accordingly, although respondents are correct that

petitioner relied on state law in his direct appeal brief, the

Third Circuit has already determined that a Pennsylvania

sufficiency-of-the-evidence claim presents the substance of a

federal due process claim to the state courts for exhaustion

purposes. Therefore, I hold petitioner has exhausted his

available state remedies regarding his due process claim

regarding sufficiency. 

Supreme Court of Pennsylvania Decision

The Supreme Court of Pennsylvania addressed the merits

of petitioner’s claim on direct appeal and held that the evidence

was sufficient to support the jury’s first degree murder verdict. 

Hall, 549 Pa. at 279-282, 701 A.2d at 195-197. In considering

the claim, the Court provided a detailed review of the record,

which is summarized extensively in the Facts section, above, at

the beginning of this Opinion. The state Supreme Court

determined that the record established the following:

At approximately 10:00 a.m. on December 18,

1993, Troy Davis, Tyrone Greene and appellant

departed Philadelphia by automobile for

Coatesville in Chester County, Pennsylvania with

the intent of committing a robbery in Coatesville. 

Appellant and his cohorts arrived in Coatesville

at approximately 12:00 noon. Upon arriving in

Coatesville, the three men decided to rob a

laundromat on Main Street. Appellant and Greene

proceeded into the laundromat while Davis waited

in the car as the getaway driver. Appellant,

armed with a loaded .357 caliber magnum revolver,

went to the cashier’s area in the rear of the

laundromat while Greene, armed with a .22 caliber

revolver, stayed near the front entrance to the

laundromat. Appellant withdrew his revolver and

demanded that the victim give him the money from

the laundromat. After the victim refused to give

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appellant the money, appellant fired a shot which

grazed the victim’s head. Appellant then fired

another shot from a distance of approximately 

four (4) to ten (10) inches which entered the back

portion of the right side of the victim’s head and

traversed through the victim’s brain causing

instantaneous death. When appellant fired the

fatal shot, his .357 caliber revolver was in

double action firing mode, which would require

nine pounds of pressure on the trigger to activate

the hammer in order to fire a round.

After shooting the victim, appellant backed

out of the laundromat waving his revolver at 

ten (10) to fifteen (15) people in the laundromat. 

Appellant then fled in the getaway car to a house

in Coatesville where appellant and his cohorts

changed clothes and joked about their weapons with

the man who resided at the house. The three men

eventually left the Coatesville house and returned

to Philadelphia where they changed clothes once

again at a fast-food restaurant.

Between December 19, 1993 and December 24,

1993, detectives in the Chester County District

Attorney’s Office interviewed three eye witnesses

to the murder. On December 23, 1993, one of the

witnesses identified appellant from a photographic

array of eight (8) black males prepared by a

Chester County detective. On December 24, 1993, a

second eyewitness, independently from the first

eyewitness, identified appellant from the same

photographic array.

On December 27, 1993, an arrest warrant was

issued for appellant’s involvement in the murder

and robbery. At approximately 6:50 a.m. on

December 28, 1993, officers of the Philadelphia

Police Stakeout Unit arrested appellant at his

mother’s home in Philadelphia. The Philadelphia

police transported appellant to the Philadelphia

Police Administration Building where appellant was

processed and turned over to the Chester County

detectives. After waiving his Miranda[] rights,

appellant was questioned by the Chester County

detectives in the Philadelphia Police

Administration Building. Appellant then made a

statement in which he confessed to his

participation in the robbery and murder. 

Appellant, however, contended that the shooting

was an accident which occurred during a struggle

with the victim. Appellant’s statement was

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reduced to a typewritten document by a Chester

County detective. Appellant ultimately reviewed,

corrected and signed the typewritten document.

549 Pa. at 280-281, 701 A.2d at 195-196 (citations omitted). 

The Supreme Court of Pennsylvania stated that in first

degree murder cases, the Commonwealth must prove that: 

(1) defendant acted with a specific intent to kill; (2) a human

being was unlawfully killed; (3) the person accused did the

killing; and (4) the killing was done with deliberation. Hall,

549 Pa. at 281-282, 701 A.2d at 196; see 18 Pa.C.S.A. § 2502(d). 

The Court further stated that specific intent to kill can be

proven where a defendant knowingly applies deadly force to

another, and death caused by the use of a deadly weapon upon a

vital part of a victim’s body is sufficient to establish specific

intent. 549 Pa. at 282, 701 A.2d at 196.

The state Supreme Court determined the evidence was

sufficient to support petitioner’s conviction for Murder of the

first degree:

Here, the evidence presented at trial showed

that appellant entered the laundromat with a

loaded revolver, which is clearly a deadly weapon. 

After the victim declined appellant’s demand for

money, appellant pointed the revolver at a vital

part of the victim’s body. At the time appellant

killed the victim, the revolver was four to ten

inches away from the victim’s head. Also, two

eyewitnesses identified appellant as the person

who emerged from the rear of the laundromat after

the shots were fired which killed the victim and

that appellant waved the revolver at them in his

attempt to flee the scene. Moreover, appellant

admitted to shooting the victim.

549 Pa. at 282, 701 A.2d at 196-197. 

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Merits Analysis

Petitioner alleges that the Supreme Court of

Pennsylvania’s decision was an unreasonable application of

Jackson because it failed to assess all of the evidence

established at trial. Petitioner avers that the Commonwealth

produced no evidence that he acted with specific intent to kill. 

Petitioner claims that no witnesses testified that they saw

petitioner intentionally shoot the victim, and that petitioner

and Mr. Green both claimed the shooting was the result of a

struggle.

Furthermore, petitioner alleges that the Commonwealth’s

ballistics expert and medical examiner both testified that the

evidence demonstrated that the victim had his hands on the gun at

some point. In addition, petitioner contends that a Chester

County detective who investigated the crime scene testified that

he saw cuts on the hands of the victim. Petitioner asserts that

the Supreme Court failed to take account of this contrary

evidence.

Because the state court has addressed the merits of

petitioner’s claim, I apply the deferential standard of review

pursuant to the AEDPA. 

I hold that the Supreme Court of Pennsylvania’s

decision was not contrary to, or an unreasonable application of,

United States Supreme Court precedent, nor did the state court

make an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.

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The due process guaranteed by the Fourteenth Amendment

mandates that “no person shall be made to suffer the onus of a

criminal conviction except upon sufficient proof -- defined as

evidence necessary to convince at trier of fact beyond a

reasonable doubt of the existence of every element of the

offense.” Jackson, 443 U.S. at 316, 99 S.Ct. at 2787, 

61 L.Ed.2d at 571. 

A reviewing court must uphold the conviction where,

“after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” 

Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. 

The court must examine all the evidence, and the

prosecution may meet its burden by relying entirely on

circumstantial evidence. Id.; United States v. Bobb, 

471 F.3d 491, 494 (3d Cir. 2006). In reviewing the conviction,

the court does not re-weigh the evidence or determine the

credibility of the witnesses. Jackson, 443 U.S. at 318-319, 

99 S.Ct. at 2789, 61 L.Ed.2d at 573. Instead, the court must

credit all available inferences in favor of the prosecution. 

United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003). 

This standard places an “extremely high” burden on a

defendant, United States v. Lore, 430 F.3d 190, 203 (3d Cir.

2005) (internal quotations omitted). A reversal because of

insufficient evidence should be confined to cases where the

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prosecution’s failure is “clear”. United States v. Jimenez, 

513 F.3d 62, 81 (3d Cir. 2008) (internal quotations omitted). 

On habeas corpus review, the court must apply “the

substantive elements of the criminal offense as defined by state

law.” Jackson, 443 U.S. at 324 n.16, 99 S.Ct. at 2792 n.16, 

61 L.Ed.2d at 577 n.16. Under Pennsylvania law, a defendant can

be convicted for Murder of the first degree where the prosecution

proves that: (1) a human being was unlawfully killed; (2) the

person accused did the killing; and (3) the killing was done in

an intentional, deliberate, and premeditated manner. 

Commonwealth v. LaCava, 542 Pa. 160, 171, 666 A.2d 221, 226 

(1995). “The specific intent to kill needed to support a firstdegree murder conviction can be proven by use of a deadly weapon

upon a vital part of the victim’s body.” Id. 

Because petitioner concedes that he unlawfully killed

the victim, petitioner essentially only contends that the

Commonwealth did not prove that he killed with specific intent.

The Supreme Court of Pennsylvania correctly found that

specific intent can be proven through circumstantial evidence. 

Even though the Commonwealth did not present any eyewitnesses to

the actual shooting, specific intent can be proven under

Pennsylvania law by the Commonwealth’s evidence that petitioner

pointed a loaded gun and fired inches away from the victim’s

head, which is a vital part of the victim’s body. LaCava, supra. 

In addition, contrary to petitioner’s contentions, the

Commonwealth’s evidence that the victim and petitioner engaged in

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a struggle prior to the fatal shooting does not negate specific

intent. Specific intent is “gauged at the moment of the killing

and may be formed in a split second”. Commonwealth v. Sherwood,

603 Pa. 92, 109 n.21, 982 A.2d 483, 494 n.21 (2009). 

The Commonwealth’s expert evidence established that the

circumstances at the moment of the fatal shot, which entered the

back of the victim’s head, evinced petitioner’s deliberate and

intentional act. Furthermore, evidence regarding petitioner’s

demeanor following the shooting is consistent with the conclusion

that petitioner acted with specific intent. The Supreme Court

properly examined all the evidence, crediting all inferences in

favor of the Commonwealth.

Accordingly, I conclude that respondents have more than

established that any rational trier of fact could have found the

essential elements of first degree murder beyond a reasonable

doubt. Moreover, the Supreme Court of Pennsylvania’s decision

was not an unreasonable application of Jackson. Therefore,

petitioner is not entitled to relief from his conviction on the

grounds of insufficiency of the evidence.

Suppression of Post-Arrest Statements 

The eleventh claim in petitioner’s habeas corpus

petition alleges trial court error and ineffective assistance of

defense counsel at the suppression hearing, which resulted in the

admission of petitioner’s confession at trial.

First, petitioner alleges that his Fifth and Fourteenth

Amendment rights were violated because he made a request for

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counsel as he was being arrested, and then he subsequently made

incriminating statements during a custodial interrogation outside

the presence of counsel that were used against him at trial.

Second, petitioner contends that his Sixth Amendment

right to effective counsel was violated because trial defense

counsel was unprepared for the motion to suppress and failed to

call witnesses who would have established that he made a request

for an attorney during arrest. Because these two grounds require

separate analyses, each will be addressed in turn.

Waiver of Miranda Rights

Petitioner alleges his waiver of his Miranda rights was

not knowing, intelligent, and voluntary because although he

requested an attorney, he was denied his Fifth Amendment right to

an attorney during a custodial interrogation.

Petitioner contends that on the morning of December 28,

1993 he was arrested by the Philadelphia Police Stakeout Unit. 

During his arrest, petitioner alleges, he asked to call his

attorney, and he requested that both his girlfriend, Wanda

Turner, and mother, Sandra Hall, call his attorney. 

At the time, Attorney Noah Gorson represented

petitioner on a separate matter. Petitioner alleges that his

mother called Attorney Gorson later that day. Attorney Gorson

subsequently called the Philadelphia police and requested to

speak with petitioner. Petitioner claims that Attorney Gorson’s

request was denied, but he was assured that the police would not

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question petitioner. Petitioner alleges he was questioned,

nonetheless. 

Respondents claim that petitioner properly waived his

Miranda rights while being questioned by Chester County

detectives in the Philadelphia Police Administration Building. 

Respondents contend that petitioner proceeded to give a

confession, which the trial court properly decided not to

suppress. Petitioner alleges that this waiver was not valid

because he was denied the right to speak with Attorney Gorson

pursuant to the Fifth Amendment.

Trial Court Findings of Fact

At the request of the Supreme Court of Pennsylvania,

the trial court conducted post-trial evidentiary hearings on the

issue of ineffective assistance of counsel during the guilt and

penalty phases of the trial. The trial court made numerous

factual findings which are relevant to petitioner’s right-tocounsel claim.

The trial court found that the following facts

establish that although petitioner requested his mother to

contact Attorney Gorson as he was being arrested, this request

was not made in the presence of the arresting officers, nor was

the request communicated to the arresting officers:

* * *

2. At the time of this arrest, Defendant was

represented by Noah Gorson, Esquire, on a pending

federal criminal matter. (N.T. 10/20/95, pp. 39-

40, 44-45).

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3. Defendant initially believed that he was being

re-arrested by federal agents of the Bureau of

Alcohol, Tobacco and Firearms on that matter. 

(N.T. 10/20/95, pp. 39-40.).

4. As Defendant was leaving his home, he asked

his mother to call his attorney. (N.T. 10/20/95,

p. 41).

5. Wanda Turner was Defendant’s girlfriend at the

time and was present with him at his mother’s home

when Defendant was arrested by the police. (N.T.

9/21/95, pp. 42-43).

6. At the time of Defendant’s arrest, as

Defendant was being led from the house by the

police, Ms. Turner heard Defendant tell his mother

to call someone. (N.T. 9/21/95, pp. 45, 46).

7. On December 28, 1993, Ms. Turner did not

advise Detective Schneider, or any other police

officer, that Defendant had requested the

assistance of counsel at the time of his arrest

and that such request was refused. (N.T. 9/21/95,

p. 62).

. . .

11. Sandra Hall (Defendant’s mother) testified on

September 21, 1995, concerning the arrest of her

son and her call to Mr. Gorson, and that testimony

was consistent with her testimony at trial. (N.T.

9/21/95, pp. 84-89).

. . .

13. Philadelphia police officer Christopher Binns

was one from among the group of police officers

who entered Defendant’s home on the morning of

December 28, 1993, at approximately 6:30 a.m., for

the purpose of arresting him. (N.T. 10/25/95, pp.

161-163).

14. While Defendant was in the presence of

Officer Binns, he never asked to call or to speak

with an attorney. (N.T. 10/25/95, pp. 164-165).

. . .

16. Philadelphia police officer George Flood was

one from among the officers who arrested Defendant

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on the morning of December 28, 1993. (N.T.

10/25/95, p. 187).

17. While Defendant was in the presence of

Officer Flood, he never asked to call or to speak

with an attorney. (N.T. 10/25/95, pp. 189-190).143

Furthermore, the trial court found that the following

facts established petitioner had not requested an attorney when

he was providing his confession to Chester County Detective David

Grandizio, nor was his confession the result of a deal for a

lenient sentence:

21. Commonwealth Exhibit C-3 is the Miranda

warnings card, the contents of which 

Detective Grandizio read to Defendant on 

December 28, 1993 [before the interrogation

began]. Detective Grandizio read the warnings

contained on that card to Defendant, word for

word. Detective Grandizio then placed Mr. Hall’s

response to those warnings on the card itself. 

(N.T. 10/27/95, pp. 22-24).

22. After Detective Grandizio read the Miranda

warnings to Defendant, Defendant began to cry and

made a statement that it was an accident, a

mistake and that he didn’t mean to do it. (N.T.

10/27/95, p. 64).

23. When asked if he wished to talk, Defendant

responded by saying, “It was an accident. It was

a mistake. I didn’t mean to do it. I’ll talk.” 

Those words were handwritten on the Commonwealth

Exhibit C-3 by Detective Grandizio. However, the

initials D.H. and the signature of Darrick Hall

were affixed to Commonwealth Exhibit C-3 by

Defendant himself. (N.T. 10/27/95, pp. 24-25).

24. At no time through the conclusion of reading

the Miranda card did Defendant request to talk to

an attorney, or mention an attorney, or mention

that he was represented by an attorney on pending

federal charges, or mention Attorney Gorson, or in

any other fashion indicate a wish to consult with

Respondents’ Appendix U, Findings of Fact, January 25, 1996, pages

143

2-4.

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or be represented by counsel. (N.T. 10/27/95, 

p. 52).

25. During the questioning, Defendant did not ask

to speak with an attorney and did not tell

Detective Grandizio that he did not wish to make a

statement. (N.T. 10/27/95, p. 29).

26. Defendant did not ask to consult with or be

represented by an attorney during the course of

the time in which he was making his statement to

Detective Grandizio. (N.T. 10/27/95, p. 61).

27. During the course of the interview with

Defendant, Detective Grandizio was not aware that

any attorney was trying to contact Defendant. 

(N.T. 10/27/95, p. 60).

28. Detective Grandizio never made a specific

promise of a certain period of incarceration, or

of 7 1⁄2 to 15 years incarceration, in order to

induce Defendant to give a statement (N.T.

10/27/95, p. 26).

. . .

31. Detective Grandizio did not promise Defendant

leniency nor did he make promises to Defendant in

order to induce him to give a statement (N.T.

10/27/95, p. 26).

. . .

43. Defendant’s testimony concerning the

circumstances of making the statement to 

Detective Grandizio and the content of that

statement were not credible. (N.T. 10/20/95, 

pp. 41-64, 112-135; N.T. 10/25/95, pp. 6-26).144

Direct Appeal

On direct appeal, petitioner claimed that the trial

court erred by failing to grant the motion to suppress

petitioner’s confession. Petitioner claimed that he was

Respondents’ Appendix U, Findings of Fact, January 25, 1996, pages

144

4-9.

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questioned after Attorney Gorson twice requested and was denied

contact with petitioner. 

Petitioner contended that, according to Commonwealth v.

Hilliard, 471 Pa. 318, 370 A.2d 322 (1977), where counsel has

expressed a desire to be present during any police interrogation,

a waiver made during counsel’s absence is invalid as a matter of

law. Without specifying whether his claim was rooted in the

Fifth or Sixth Amendment right to counsel, petitioner claimed

that because Attorney Gorson was denied access to petitioner, and

petitioner was never informed of counsel’s availability, his

waiver of the right to counsel was not knowing and voluntary.

The Supreme Court of Pennsylvania addressed this claim

on direct appeal. Although the Court initially characterized

petitioner’s claim as an alleged violation of his Sixth Amendment

right to counsel, the Court nonetheless explicitly cited the

Fifth Amendment and discussed Fifth Amendment right to counsel

precedent. The Court proceeded to analyze the right to counsel

under both amendments. The Court held that the trial court did

not err by not suppressing petitioner’s confession because

petitioner had not been denied the right to counsel. 

Relying on the trial court factual findings, the

Supreme Court of Pennsylvania held that petitioner’s waiver of

his Miranda rights was valid because petitioner himself never

asked for an attorney. The Court held that at no time during the

arrest did any Philadelphia police officer hear petitioner ask to

call or speak with an attorney. The Court also held that at no

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time during petitioner’s subsequent interrogation did he request

to speak to an attorney.

The Court further held that Chester County Detective

Grandizio properly issued petitioner the Miranda warnings. The

Court held that petitioner verbally waived his Miranda rights and

also signed the Miranda warnings card. 

Finally, the Court held that although Attorney Gorson

did call the Philadelphia Police Administration Building at the

request of petitioner’s mother, and he was denied contact with

petitioner, Attorney Gorson was neither retained at the time of

the call nor at any time thereafter relating to these charges.

Accordingly, the Court held that petitioner knowingly,

intelligently, and voluntarily waived his right to have counsel

present during the interrogation. Therefore, the Court held that

the trial court properly denied petitioner’s motion to suppress

his confession. 

Exhaustion

Respondents contend that petitioner’s Fifth Amendment

claim is not exhausted because petitioner never fairly presented

this claim to state courts as required by 28 U.S.C. § 2254(b). 

The Commonwealth alleges that petitioner failed to raise the

claim under a particular federal right on direct appeal, and that

the state court interpreted petitioner’s allegation as a Sixth

Amendment right to counsel claim.

While respondents are correct that petitioner failed to

cite either the Fifth or Sixth Amendment in his direct appeal

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brief, petitioner cited cases which discussed the right to

counsel under the Fifth Amendment. According to the Third 145

Circuit, “reliance on state cases employing constitutional

analysis in like fact situations” is one indirect way a

petitioner may fairly present his federal claim to state courts. 

McCandless, 172 F.3d at 261 (internal quotation omitted).

Petitioner cited Commonwealth v. Yates, 467 Pa. 362,

357 A.2d 134 (1976), which discussed both the Fifth and Sixth

Amendment rights to counsel. Yates also contained a lengthy

analysis of the Fifth Amendment and Fourteenth Amendment right to

counsel during custodial interrogations based on Miranda. 

467 Pa. at 368-369, 357 A.2d at 137. 

Petitioner also cited Commonwealth v. Lark, 

505 Pa. 126, 477 A.2d 857 (1984), which discussed Miranda rights

in the context of a custodial interrogation. The case addressed

a defendant’s right to remain silent and a defendant’s ability to

waive the right against self-incrimination, and it cited a United

States Supreme Court case, Malloy v. Hogan, 378 U.S. 1, 

84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Lark, 505 Pa. at 133, 

477 A.2d at 861.

Petitioner also cited Commonwealth v. Hawkins, 448 Pa. 206,

145

292 A.2d 302 (1972), and Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322

(1977). Hawkins discussed both the Fifth and Sixth Amendment right to

counsel, although it appeared to be decided on the Sixth Amendment.

448 Pa. at 211-214, 292 A.2d at 305-306.

The analysis in Hilliard is even less clear because it cites

neither amendment explicitly. It contains analysis applicable to both Fifth

and Sixth Amendment right-to-counsel claims. 471 Pa. at 322-323, 370 A.2d at

323-324. Accordingly, it is understandable that the Supreme Court of

Pennsylvania ultimately addressed petitioner’s claim under both amendments.

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In Malloy, the United States Supreme Court discussed

the Fifth Amendment right against self-incrimination. 

378 U.S. at 6-7, 84 S.Ct. at 1492-1493, 12 L.Ed.2d at 658-659. 

The Fifth Amendment right to counsel identified in Miranda is

based upon, and is intended to protect, the right against selfincrimination outlined in Malloy. Miranda, 384 U.S. at 464-468,

86 S.Ct. at 1622-1625, 16 L.Ed.2d at 717-720 (1966). 

As further evidence that petitioner raised a Fifth

Amendment claim in his direct appeal brief, the Supreme Court of

Pennsylvania cited both Malloy and the Fifth Amendment in

addressing his right to counsel claim. Hall, 549 Pa. at 285, 

701 A.2d at 198.

Therefore, because the cases petitioner cited contained

constitutional analysis of the Fifth Amendment right to counsel,

the state court was properly on notice that petitioner was

alleging a federal claim under this amendment. I hold petitioner

has fairly presented his constitutional claim to the state courts

for exhaustion purposes.

Merits Analysis 

Because the Supreme Court of Pennsylvania addressed the

merits of petitioner’s Fifth Amendment claim, the deferential

standard of review identified in the AEDPA applies.

In order to protect the Fifth Amendment right against

self-incrimination, an individual subject to a custodial

interrogation must be informed that he has a right to have

counsel present. Miranda, 384 U.S. at 469, 86 S.Ct. at 1625, 

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16 L.Ed.2d at 721. A waiver of the right to counsel must be

knowing, intelligent, and voluntary. Edwards v. Arizona, 

451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378, 385

(1981). Once the individual has requested the presence of an

attorney, the interrogation must cease until the request is

granted. Miranda, 384 U.S. at 474, 86 S.Ct. at 1628, 

16 L.Ed.2d at 723. 

Following a request for an attorney, an individual’s

waiver of his rights will be deemed invalid where his request for

counsel has not been granted, and the police initiated the

further questioning. Edwards, 451 U.S. at 484-485, 

101 S.Ct. at 1884-1885, 68 L.Ed.2d at 386. Where the individual,

instead of the police, initiates the meeting and volunteers

statements, the individual’s Fifth Amendment right is not at

issue because the statements were not offered in the context of a

custodial interrogation, thereby rendering waiver unnecessary. 

451 U.S. at 485-486, 101 S.Ct. at 1885, 68 L.Ed.2d at 387. 

Petitioner fails to cite any caselaw supporting his

contentions, but his legal claim appears to be the following:

[The] Fifth Amendment right to counsel is not

offense specific and once invoked prohibits

interrogation of the Petitioner on any other

offense. Therefore, all of the interrogations of

Petitioner that took place approximately three

months [after petitioner had retained Attorney

Gorson on a separate matter], on December 28,

violated his Fifth Amendment right to counsel.146

Petition for Writ of Habeas Corpus, filed February 17, 2006,

146

page 90.

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Petitioner’s claim appears to combine both the Fifth

and Sixth Amendment right to counsel legal standards, which the

United States Supreme Court has explicitly prohibited. McNeil v.

Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). 

Accordingly, the fact that petitioner had previously retained

counsel on a separate criminal matter is irrelevant to whether he

invoked his Fifth Amendment right to counsel during the

interrogation on December 28, 1993. 

Instead, the relevant inquiry for Fifth Amendment

purposes is whether petitioner requested counsel for the 

December 28, 1993 custodial interrogation. McNeil, 

501 U.S. at 178-179, 111 S.Ct. at 2209, 115 L.Ed.2d at 168-169.

While petitioner concedes that he executed a waiver of

his Miranda rights prior to the interrogation, he contends the

waiver was not valid because he had already invoked his right to

counsel by requesting a lawyer upon his arrest.

If petitioner had informed the arresting officers that

he wanted to contact an attorney, pursuant to Edwards his

subsequent waiver of his right to counsel would be invalid

because his request for counsel had not been granted. 

The trial court conducted evidentiary hearings and made

factual findings precisely on the question of whether petitioner

requested an attorney. The trial court found that although

petitioner had asked his mother to contact Attorney Gorson, this

request was not made in the presence of the arresting officers,

nor was it communicated to the arresting officers or the

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detectives who interviewed petitioner. Furthermore, at no point

during his interrogation did petitioner request an attorney or

inform his interrogator that he had requested an attorney. The

Supreme Court of Pennsylvania relied on these findings in holding

that petitioner’s Fifth Amendment right to counsel had not been

violated.

Under the AEDPA, a state court’s factual findings are

“presumed to be correct,” and petitioner has the burden of

rebutting the presumption by clear and convincing evidence. 

28 U.S.C. § 2254(e)(1). Petitioner has failed to present such

evidence rebutting the trial court findings. Although it is

possible to draw contrary inferences from the testimony of

petitioner, his mother, and his girlfriend, the trial court did

not credit that testimony, and the record is devoid of testimony

from any police officer or detective confirming petitioner’s

request for an attorney. 

Specifically, two members of the Philadelphia Police

Stakeout Unit who arrested petitioner testified that they never

heard petitioner request a lawyer. The Chester County 147

detective who conducted the interrogation testified that

petitioner never requested a lawyer. Two other officers who 148

N.T. October 25, 1994, pages 164 and 189-190.

147

N.T. October 27, 1995, pages 29, 52, and 61.

148

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were present during petitioner’s arrest also testified that they

did not hear petitioner ask for an attorney. 

149

The trial court explicitly found that petitioner’s

testimony that he asked Detective Grandizio for an attorney, and

that Detective Grandizio promised him a lenient sentence if he

waived his Miranda rights, was not credible. In addition, the 150

trial court found that petitioner’s girlfriend did not inform any

police officer that petitioner had requested counsel. 

151

The trial court only found petitioner’s mother’s claim

that petitioner asked her to call Attorney Gorson credible.152

Accordingly, I conclude that petitioner is not able to establish

by clear and convincing evidence that the factual findings of the

trial court or the Supreme Court of Pennsylvania are incorrect.

Furthermore, even assuming that Attorney Gorson had

called the Philadelphia Police Administration Building and was

incorrectly informed that petitioner was not being questioned,

that fact does not undermine the validity of petitioner’s waiver

of his Miranda rights. 

In Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 

89 L.Ed.2d 410 (1986), a remarkably similar case, defendant was

Notes of Testimony of the suppression hearing conducted before The

149

Honorable Paula Francisco Ott, former Judge of the Court of Common Pleas of

Chester County, Pennsylvania on May 23, 1994 (“N.T. May 23, 1994") pages 31

and 105; N.T. October 25, 1994, page 456.

Respondents’ Appendix U, Findings of Fact, January 25, 1996, page

150

9.

Id. at page 2.

151

Id.

152

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arrested and was held for questioning. In the meantime, his

sister contacted the public defender’s office and, at her

request, a lawyer called the unit where defendant was being held. 

475 U.S. at 416-417, 106 S.Ct. at 1138-1139, 89 L.Ed.2d at 418. 

The lawyer from the public defender’s office was incorrectly

informed that police would not be questioning defendant, and

defendant was not aware that the lawyer was trying to reach him. 

475 U.S. at 417, 106 S.Ct. at 1139, 89 L.Ed.2d at 418. 

Later, defendant waived his Miranda rights and gave a

confession. 475 U.S. at 417-418, 106 S.Ct. at 1139, 

89 L.Ed.2d at 418. Defendant subsequently moved to suppress the

confession, claiming that the waiver was invalid because the

police deprived him of information essential to knowingly waive

his Fifth Amendment rights. 475 U.S. at 418, 421, 106 S.Ct. at

1140, 89 L.Ed.2d at 420. 

The United States Supreme Court stated that “[e]vents

occurring outside of the presence of the suspect and entirely

unknown to him surely can have no bearing on the capacity to

comprehend and knowingly relinquish a constitutional right.” 

475 U.S. at 422, 106 S.Ct. at 1141, 89 L.Ed.2d at 421. 

The Supreme Court further stated that the culpability

of the police in preventing the lawyer from contacting the

defendant was unrelated to the validity of defendant’s waiver: 

But whether intentional or inadvertent, the state

of mind of the police is irrelevant to the

question of the intelligence and voluntariness of

[defendant’s] election to abandon his rights. 

Although highly inappropriate, even deliberate

deception of an attorney could not possibly affect

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a suspect’s decision to waive his Miranda rights

unless he were aware of the incident. 

475 U.S. at 423, 106 S.Ct. at 1142, 89 L.Ed.2d at 422. 

Accordingly, I conclude that the Supreme Court of

Pennsylvania’s determination that petitioner’s waiver of his

Fifth Amendment rights was voluntary, knowing, and intelligent

was not contrary to or an unreasonable application of clearly

established federal law, nor was the decision based on an

unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, petitioner

is not entitled to relief for the alleged trial court error in

failing to suppress petitioner’s confession.

Ineffective Assistance of Counsel

Petitioner alleges he was denied effective assistance

of counsel based upon the conduct of trial defense counsel at the

suppression hearing.

Petitioner claims trial defense counsel admitted that

he was unprepared at the beginning of the suppression hearing:

THE COURT: I have your entry of appearance from

Friday which I have entered into the file. The

first question I wanted to ask you is, have you

had an opportunity to review the suppression

motion that was filed by the previous attorney?

MR. MILLER: Yes, I have, your Honor. I have had

an opportunity to review it. I picked it up on

Saturday, this weekend. I believe a public

defender...left one with the guard here, and I

picked a copy of that up and I have reviewed it. 

Yes, I have. 

I have not had an opportunity to investigate

as I would like in regards to the allegations that

are made within their motion.

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THE COURT: Well, as you know, it was a condition

that you agreed upon when you asked me to allow

you to enter the case by Friday of last week, that

you would go forward with the suppression hearing

today.153

Petitioner further contends that had trial defense

counsel been prepared, he could have called petitioner’s mother,

Sandra Hall, and petitioner’s girlfriend, Wanda Turner, who were

present at the time of petitioner’s arrest, and were available at

the time of the suppression hearing. Petitioner avers these

witnesses would establish that he requested and was denied an

attorney at the time he was arrested. 

In addition, petitioner alleges that had he been called

as a witness at the suppression hearing, his testimony would have

established that he had asked for an attorney. He also would

have testified that he only waived his Miranda rights because he

was offered a sentence of seven-and-a-half to fifteen years in

prison in exchange for the waiver.154

Direct Appeal

Petitioner raised his ineffective assistance claim on

direct appeal. The Supreme Court of Pennsylvania held that 155

petitioner’s claim failed because he could not establish

prejudice. Hall, 549 Pa. at 291, 701 A.2d at 201.

N.T., May 23, 1994, page 3.

153

N.T., September 21, 1995, pages 40, 44 and 57.

154

As an initial matter, respondents contend that this claim is not

155

exhausted because the Supreme Court of Pennsylvania cited the Sixth Amendment

right to counsel, instead of the Fifth Amendment right to counsel, in

summarizing petitioner’s claim. However, this claim has been properly

exhausted because petitioner cited state cases containing pertinent Fifth

Amendment analysis.

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The Supreme Court explained that the trial court heard

testimony during post-trial ineffective assistance of counsel

hearings from petitioner, Sandra Hall and Wanda Turner to the

effect that petitioner asked his mother and girlfriend to call an

attorney while he was being arrested. Hall, 549 Pa. at 291, 

701 A.2d at 201. The Supreme Court held that the trial court

found that none of the witnesses ever conveyed petitioner’s

request for an attorney to the Philadelphia Police officers

during arrest or the Chester County detectives during

interrogation. Id. 

Therefore, the Supreme Court held that the testimony of

Ms. Hall and Ms. Turner would not have changed the result of the

suppression hearing, and so petitioner was not prejudiced by

trial counsel’s failure to call these witnesses. Id.

Merits Analysis

Because the Supreme Court of Pennsylvania addressed the

merits of the ineffective assistance of counsel claim,

petitioner’s claim is subject to the deferential standards of

review pursuant to the AEDPA.

Petitioner contends that the Supreme Court of

Pennsylvania’s decision was contrary to or an unreasonable

application of federal law. Petitioner claims the court used the

wrong standard for analyzing the prejudice prong of Strickland. 

Petitioner alleges the proper inquiry is not whether

competent counsel’s efforts would have changed the result of the

hearing, but rather whether confidence in the outcome of the

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proceedings is undermined. Petitioner avers that there is a

reasonable probability that, had these critical witnesses been

presented, petitioner would have been successful on the merits of

his motion to suppress.

The Supreme Court of Pennsylvania only addressed the

prejudice prong, which complies with Strickland: “If it is easier

to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so, that

course should be followed.” 466 U.S. at 697, 104 S.Ct. at 2069,

80 L.Ed.2d at 699.

In Wiggins, the United States Supreme Court stated that

“[i]n Strickland, we made clear that, to establish prejudice, a

‘defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the

outcome.’” 539 U.S. at 534, 123 S.Ct. at 2542, 156 L.Ed.2d at

493 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 

80 L.Ed.2d at 698). 

The United States Supreme Court further emphasized the

importance of the reliability of the proceeding: “the ultimate

focus of the inquiry must be on the fundamental fairness of the

proceeding whose result is being challenged. In every case the

court should be concerned with whether, despite the strong

presumption of reliability, the result of the particular

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proceeding is unreliable....” Strickland, 466 U.S. at 696, 

104 S.Ct. at 2069, 80 L.Ed.2d at 699. 

Here, the Supreme Court of Pennsylvania essentially

held that the question of whether there was a reasonable

probability that the result of the suppression hearing would have

been different had already been answered by the trial court

during the post-trial ineffective assistance of counsel hearings. 

At these evidentiary hearings, petitioner had the opportunity to

present the testimony of the witnesses that he claims he should

have had the opportunity to present at his suppression hearing. 

Although the trial court heard the testimony from all three

witnesses in question, the trial court nonetheless made findings

of fact that petitioner’s allegations were not credible.

Specifically, the trial court found that petitioner had

informed neither his initial public defender nor his subsequent

privately retained counsel that Detective Grandizio had promised

him a deal of seven-and-a-half to fifteen years in prison in

exchange for his confession. The trial court found that 156

petitioner never requested counsel at any point during the

interrogation, and furthermore, that the arresting officers had

not heard or been told that petitioner requested counsel.157

Therefore, the Supreme Court of Pennsylvania’s

conclusion that petitioner was not prejudiced because the

Respondents’ Appendix U, Findings of Fact, January 25, 1996, pages

156

9-11.

Findings of Fact, January 25, 1996, pages 3-6.

157

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testimony of these three witnesses would not have changed the

result of the proceeding was neither contrary to nor an

unreasonable application of Strickland.

Furthermore, the Supreme Court of Pennsylvania’s

decision was not unreasonable in light of the holding in

Strickland that an attorney’s deficient performance does not

prejudice a petitioner by depriving him of a fair trial with a

reliable result. 466 U.S. at 687, 104 S.Ct. at 2064, 

80 L.Ed.2d at 693. 

Even if trial defense counsel had been successful in

suppressing petitioner’s confession, independent evidence

presented at trial, including eyewitness identifications,

established that petitioner was the person who committed the

killing. Independent evidence regarding the circumstances of the

shooting, including the expert evidence describing the path of

the bullet, established that the killing constituted first degree

murder. 

In fact, petitioner’s statement was ultimately

exculpatory because it was the only evidence clearly asserting

that the killing was accidental. Petitioner does not now contest

the defense theory that the shooting was the result of a struggle

and was accidental. The confession was consistent with the

overall defense theory that although petitioner committed the

killing, he should only be found guilty of second degree murder. 

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Trial defense counsel stated that he thought the

statement was “exculpatory in nature,” and that he wanted it to 158

be admitted at trial because he believed petitioner would not

take the stand: “In balancing or weighing the statement, I think

it’s overwhelmingly pointed towards second degree murder, as

opposed to first degree murder, overwhelmingly. I, also, knew

that my client, very possibly, may not take the witness stand.”159

Although ultimately unsuccessful, the statement was integral in

supporting petitioner’s defense theory that he should not be

guilty of first degree murder. 

Accordingly, it is difficult to imagine how the

admission of the statement deprived petitioner of a fair trial

with a reliable result. Therefore, the Supreme Court of

Pennsylvania’s decision that petitioner cannot establish

prejudice is not contrary to or an unreasonable application of

United States Supreme Court precedent. Petitioner is not

entitled to relief based upon the alleged errors identified in

claim eleven of petitioner’s habeas corpus petition. 

Cumulative Effect of All Errors

The thirteenth claim in petitioner’s habeas corpus

petition alleges that the cumulative effect of the errors

committed by the trial court, defense counsel, and the prosecutor

undermined the fairness of the trial and sentencing proceedings,

N.T. October 27, 1995, page 79.

158

Id.

159

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thereby entitling petitioner to have his conviction overturned

and his death sentence vacated.

Respondents contend that petitioner’s claim is not

exhausted because it has never been presented to any state court,

and it is raised for the first time in petitioner’s federal

habeas corpus petition.

Petitioner fails to explain when or how the claim for

cumulative error has been presented to the state courts. Upon

review of the record, it is clear petitioner raises this claim

for the first time in his federal habeas corpus petition.

Although it appears the United States Court of Appeals

for the Third Circuit has not explicitly addressed exhaustion in

the context of a claim for cumulative error, other circuits 160

have concluded that a cumulative error claim must itself have

been presented to the state courts before a habeas corpus

petitioner may be entitled to relief upon it. Wooten v.

Kirkland, 540 F.3d 1019, 1023-1025 (9th Cir. 2008); Jimenez v.

Walker, 458 F.3d 130, 148 (2d Cir. 2006). 

Furthermore, I find the reasoning of my colleague,

United States District Judge C. Darnell Jones II, in Stidham v.

Varano, 2009 WL 1609423, at *24-25 (E.D.Pa. Jun. 9, 2009) to be

persuasive. In that case, petitioner asserted that he was

entitled to relief for the cumulative effect of the alleged

The cumulative error claims addressed on the merits by the Third

160

Circuit have been previously presented to the state courts, and so the issue

of exhaustion had not been discussed. See, e.g., Fahy v. Horn,

516 F.3d 169, 205 (3d Cir. 2008) (claim for cumulative error presented to the

PCRA court); Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir. 2002) (claim for

cumulative error presented to the Supreme Court of New Jersey).

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errors of trial counsel. Stidham, 2009 WL 1609423, at *24. 

Respondents contended that petitioner’s claim was not exhausted

because he never raised it before the state courts. Stidham,

2009 WL 1609423, at *25. 

Judge Jones determined that the claim was not properly

exhausted and was procedurally defaulted. Id. The court further

held that even if all the individual alleged errors had been

properly exhausted before the state courts, petitioner

nonetheless had not satisfied the exhaustion requirement with

respect to his cumulative error claim. Id.; accord, 

Prosdcocimo v. Beard, 2010 WL 5676535, at *11 (W.D.Pa. Nov. 29,

2010)(Mitchell, M.J.).

Accordingly, petitioner’s claim based on the cumulative

effect of the alleged errors was not properly exhausted and is

now procedurally defaulted, precluding federal habeas corpus

review.

CONCLUSION

For the foregoing reasons, petitioner Darrick U. Hall’s

Petition for a Writ of Habeas Corpus will be granted in part and

denied in part.

Specifically, I grant petitioner relief from his death

sentence based upon petitioner’s first claim for relief. 

Petitioner’s death sentence is vacated because trial defense

counsel was ineffective in failing to investigate and present

significant mitigating evidence at the penalty phase of

petitioner’s trial regarding petitioner’s abusive childhood,

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illnesses and injuries normally associated with developmental and

cognitive delays, and his ability to adjust to a structured

environment during the years he attended a disciplinary school.

More specifically, trial counsel failed to seek out,

interview and present testimony from some of petitioner’s family,

friends and employers, and failed to request readily available

medical, educational and court records and failed to obtain

evaluations by a mental health expert. This fell below an

objective standard of reasonableness, and petitioner suffered

prejudice as a result of trial counsel’s deficient performance.

The Petition for a Writ of Habeas Corpus is denied in

all other respects regarding petitioner’s remaining twelve claims

for relief.

I further conclude that petitioner is not entitled to

relief from his conviction.

I stayed the execution of the writ of habeas corpus for

180 days to permit the Commonwealth of Pennsylvania to grant

petitioner a new sentencing hearing, and gave the parties until

November 21, 2014 to file a motion requesting a certificate of

appealability under 28 U.S.C. § 2253. 

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